Central Administrative Tribunal - Delhi
Rajendra Singh vs M/O Urban Development on 27 January, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 638/2014
Order Pronounced on: 27th January, 2016
Hon'ble Mr. A. K. Bhardwaj, Member (J)
Hon'ble Mr. V.N. Gaur, Member (A)
1. Sh. Rajendra Singh,
S/o Sh. Shiv Raj Singh,
R/o 589, Sect-3,
R.K.Puram, New Delhi.
2. Mathura Prasad,
S/o Sh. Hari Ram
R/o 261, Shri Keshav Kunj Apptt.,
Sector-17, Pocket D,
Dwarka, New Delhi.
3. Lorengob Dung Dung,
S/o Sh. Paulus Dung Dung,
Flat No.II, Pocket-K,
Sarita Vihar, New Delhi-110025.
4. Parmanand,
S/o Late Sh. Ghisya Ram,
R/o 44-A, Pocket-B,
Mayur Vihar Phase-II,
Delhi-110091.
5. Apurba Kumar Das,
S/o Late Sh. Kartick Chandra Das,
R/o 17/36-A, K.P.Roy Lane,
Dhakuria, Kolkata-700 031. - Applicants
(By Advocate: Mrs. Rekha Palli)
Vs.
1. Union of India
Through Secretary,
Ministry of Urban Development,
Nirman Bhawan, Delhi.
2 OA No.638/2014
2. The Secretary,
Department of Personnel & Training,
North Block, New Delhi.
3. The Director General (Works)
C.P.W.D. 'A' Wing,
Nirman Bhawan,
New Delhi.
- Respondents
(By Advocate: Sh. R.N.Singh and Sh. R.V.Sinha)
ORDER
Hon'ble Shri V.N.Gaur, Member (A) The applicants in the present OA are working as regular Superintending Engineers (SE) (Civil) w.e.f. 24.07.2013 in the CPWD (R-3). They were promoted to this post on ad hoc/in situ basis by order 06.12.2010. They are now seeking regular promotion as SE (C) from 2007 when their other batchmates were promoted. The prayer made in this OA reads as follows:
"8.1 Directing the Respondents to treat the regular promotion of the Applicants to the post of Superintending Engineer (Civil) granted vide order dated 24.07.2013 to be effective w.e.f. date of accrual of vacancies i.e. 01.04.2007 to 31.07.2007 and grant them all consequential benefits;
8.2 Directing the Respondents to treat the period of adhoc promotion of the Applicants to the post of Superintending Engineer (Civil) towards their regular promotion as Superintending Engineer (Civil);
8.3 Directing the Respondents to grant benefit of Non- functional Upgradation in the Grade of SAG w.e.f. 04.04.2012 as granted to other batchmates and if needed by granting the requisite relaxation in the period 1 year regular service in the post of S.E. (Civil);
8.4 Issue any other order that this Hon'ble Tribunal may deem fit and proper."3 OA No.638/2014
2. The applicants have reached the present position of SE (Civil) after a series of litigations. We do not consider it necessary to recount the entire history of litigation at this juncture, and therefore, will refer only to those cases which are considered relevant in the context of the prayer made in the present OA.
3. Ms. Rekha Palli, learned counsel appearing on behalf of the applicants submitted that the prayer of the applicants in this OA is targeting the vacancies arising in the grade of SE during the period 01.04.2007 and 31.07.2007, just before the recruitment rules got amended w.e.f. 01.08.2007. The respondents were at that time operating the seniority list of Executive Engineers (EEs) notified on 10.11.2004 in which the applicants were placed at Sl. Nos.339, 341, 342, 343 & 344. The batchmates of the applicants like S/Sh. M.K.Talreja (330), Rajesh Khare (333), Ram Dayal (334), N.K.Bansal (335), G.C.Kabi (336) and Rajesh Banga (338) were promoted between 04.01.2007 and 16.01.2008 on the basis of the same seniority list. Respondents, however, did not consider the request of applicants for promotion from 2007 taking a plea that the seniority list could be finalised only in 2012 and the DPC could not be held in the absence of the final seniority list. In OA No.1310/2008 this Tribunal vide order dated 09.01.2009 had directed the respondents to prepare a flawless seniority list before undertaking further promotion. According to the learned counsel 4 OA No.638/2014 the respondents have used that order as an excuse for denying promotion to the applicants from 2007 when there was no dispute about the seniority of the applicant; it is undisputed even today.
4. The learned counsel further submitted that the applicants had filed OA No.1895/2010 during the pendency of which the respondents promoted 106 EEs, including the applicants, to the post of SE on ad hoc/in situ basis on 06.12.2010. The OA, thus, became infructuous. The applicants again filed OA No.3274/2011 seeking regular promotion w.e.f. 2007 which was disposed of by this Tribunal by order dated 30.01.2012 noting the admitted position of the respondents that they would consider the applicants for promotion against vacancies of the period from 01.04.2007 to 31.07.2007. Accepting the request of the respondents, the Tribunal directed the respondents to carry out aforementioned exercise and if the applicants were found fit for promotion, to promote them as expeditiously as possible and definitely within three months. According to the learned counsel the respondents failed to comply with the direction of the Tribunal. Referring to the reply filed by the respondents to the impleadment application MA No.1678/2008 in OA-1310/2008 and the counter dated 27.01.2012 filed in OA No.3274/2011, copy of which is available on record, learned counsel stated that it was an admitted fact that there were sufficient number of vacancies of SE (Civil) available for the promotion of the applicants in the present OA. It had also been 5 OA No.638/2014 categorically admitted that respondents had no objection to consider the promotion of the applicants to the post of SE (Civil) since there was no dispute regarding their seniority. The respondents are now going back on their admitted position and making misleading statement that their hands were tied because of various stay orders of the Courts.
5. The respondents have finalised a new seniority list on 28.09.2012 and held DPC in February, 2013 on the basis of that seniority list. The recommendations of the DPC were not acted upon by the respondents as the same was challenged in another OA. After dismissal of that OA vide order dated 18.07.2013, the respondents issued regular promotion order of the applicant on 24.07.2013. As a result of the delay in holding the DPC from 2007 to 2013, the applicants have also been deprived of non-functional upgradation (NFU) which was introduced in 2009 and requires one year regular service as SE.
6. Alleging that the respondents follow different yardsticks in different cases, the learned counsel of the applicants referred to an order no.25/2005 dated 25.02.2015 by which some officers in the grade of EEs have been regularised with retrospective effect giving benefit of their ad-hoc service, but the same principle has not been applied in the case of the applicants.
6 OA No.638/2014
7. Learned counsel for applicant has relied on the following cases:
1. Rudra Kumar Sain and others vs. Union of India and others, (2000) 8 SCC 25
2. V.K.Jain vs. Union of India, WP (C) No.561/2003 of Hon'ble High Court of Delhi.
3. Union of India and others vs. MD Sikandar Ali and another, WP No.11337/2012 of Hon'ble High Court of Madras
4. Union of India, General Manager vs. G.D.Goel, Mumtaz Ahmad; D.Thomas, WP (C) no.4657/2005 of Hon'ble High Court of Delhi
5. UOI & Anr. Vs. K.L.Taneja and anr., WP (C) no.8102/2012 and batch of Hon'ble High Court of Delhi
6. Captain Bindu Sethi vs. UOI and ors., WP(C) No.4840/2010 of Hon'ble High Court of Delhi.
8. Learned counsel for the respondents contested the prayer made by the applicants and raised the preliminary objection of delay and misjoinder of parties. Learned counsel stated that law does not recognise retrospective promotion except under certain conditions which do not get attracted in the present case. Referring to the office order dated 25/15 on 25.02.2015 giving retrospective promotion to the EEs, learned counsel stated that in WP (C) no.840/2003, through an interim order dated 30.03.2006, the 7 OA No.638/2014 Hon'ble High Court of Delhi had restrained the respondents from making regular promotion to the grade of EEs and as a result the respondents could not hold the DPC. Only after the disposal of WP (C) no.840/2003 on 22.07.2014 the matter was considered in consultation with Department of Personnel & Training and Department of Legal Affairs and it was decided to issue order for promotion of officers who were initially promoted to the grade of EE on ad hoc basis as having been promoted on regular basis from on or after the date of meeting of the Screening Committee.
9. Explaining the background as to why the applicants could not be considered for promotion in the year 2007, learned counsel stated that earlier promotion to the grade of SE (Civil) was being made on the basis of the seniority list circulated on 10.11.2004. Later, this Tribunal by a common order passed on 16.07.2007 in OA No.779/2006, 1626/2006 and 1349/2006 held that EE (Civil) promoted against the vacancies diverted from AEE quota to AE quota were not entitled to benefit on account of deemed date of promotion assigned to them. This was followed by another order dated 09.01.2009 in OA No.1310/2008 directing the respondents to draw a flawless seniority list of EE (C). This order was challenged in WP (C) no.536/2009 titled P.P.Singh vs. UOI and WP (C) No.12914/2009 titled R.K.Kashyap vs. UOI. The WP (C) no.536/2009is still pending while the WP (C) No.12914/2009 has been disposed of by the Hon'ble High Court of Delhi on 27.07.2010 8 OA No.638/2014 clarifying that it would be open to the department to draw up a final seniority list of EEs from 01.01.1997 till date following due procedure. The respondents, accordingly, circulated a draft seniority list on 14.12.2011 and finalised the seniority list on 28.09.2012 after inviting and disposing of objections. The finalised seniority list was, however, challenged in OA No.3372/2012 and batch but that was dismissed on 18.07.2013 upholding the seniority list circulated vide OM dated 28.09.2012. WP (C) No.5843/2013 and WP (C) No.5907/2013 have been filed before the High Court of Delhi challenging the order dated 18.07.2013 which are still pending. The respondents gave promotion to the applicants w.e.f. 06.12.2010on ad hoc/in situ basis because of pending litigations. He denied that the respondents had not carried out the direction given by this Tribunal in OA No.3274/2011 stating that for undertaking any promotion, the finalised seniority list of the feeder grade was a pre-requisite. In this case, the seniority list could be finalised only on 28.09.2012. The respondents had convened the DPC on 22.02.2013 but before the recommendations of DPC could be accepted and approved by the competent authority, the Hon'ble High Court of Delhi by order dated 26.02.2013 in WP (C) No.1269/2013 restrained the respondents from notifying the result of the DPC. The respondents could proceed further only after the stay was vacated and a contempt petition in OA No.3274/2011 was disposed of. According to learned counsel, mere availability of 9 OA No.638/2014 vacancy and eligibility of the employee for the promotional post would not entitle him for retrospective promotion for which he relied on UOI vs. Rajender Roy in WP (C) No.20812/2005 and UOI vs. Vijendra Singh, 2011 (1) 76 DLT 247. Learned counsel for respondents has also relied on Union of India vs. Avinash Mishra, WP (C) No.4724/2004 and Dr. Ranjan Chandra vs. Ministry of Health & Family Welfare, WP (C) No.1662/2007 of Hon'ble High Court of Delhi.
10. We have heard the learned counsels for the parties and perused the record. With regard to the objection of the respondents of delay and laches, during the arguments the learned counsel for the respondents did not argue on this point, nor do we find any reason to accept that objection. The present application was filed on 14.02.2014 seeking promotion w.e.f. 2007 after the respondents issued the order dated 24.07.2013 regularising his services as SE (Civil) with immediate effect, which has given them the present cause of action. The present OA filed on 14.02.2014 therefore is well within limitation. The objection of respondents regarding misjoinder of parties was also not pressed during the arguments. However, we agree with the learned counsel for the applicants that seniority of the applicants in the seniority list of 2004 puts them just below those who had been considered for promotion in the year 2007. Therefore, antedating seniority of the applicants is not going to affect any other officer who can claim seniority above the 10 OA No.638/2014 applicants, and therefore, there was no need for impleading any private respondent.
11. The case of the applicants is that the persons senior to him promoted in 2007, or earlier, are from the same batch of AEs, i.e. 1989. They should also have been considered for promotion in the year 2007-08 before the promulgation of the amendment of the recruitment rules on 01.08.2007. Perusal of the reply filed by the respondents to the impleadment application MA No.1678/2008 in OA-1310/2008 and the counter dated 27.01.2012 filed in OA No.3274/2011 do show that the respondents had admitted that there was no dispute regarding the seniority of the applicants, and that vacancies were available. The respondents have failed to show any reason as to why they could not hold DPC for the vacancies arising during the period 01.04.2007 to 31.07.2007 except stating that the RRs were amended on 01.08.2007. One can only surmise that since the DPCs are held usually once in a year and the RRs got amended w.e.f. 01.08.2007 the respondents overlooked the vacancy arising during the period 01.04.2007 to 31.07.2007 which had to be filled up in accordance with the pre-amended RRs. The respondents have also not been able to explain as to how the orders dated 04.01.2007 promoting 4 EEs (Civil) to the post of SE (Civil), the order dated 27.09.2007 promoting another 4 EEs (Civil) to the grade of SE (Civil) and the order dated 16.01.2008 promoting one EE (Civil) to the post of SE (Civil) could be issued if there were 11 OA No.638/2014 restraint orders from the Courts and the respondents were handicapped for want of a finalised seniority list as has been argued in the counter filed by the respondents.
12. Learned counsel for the respondents has further relied on the instructions of the DOP&T in which it has been stated that the promotion of an officer can be only from the date of joining or date of DPC and cannot be antedated to an earlier date.
13. We summoned the file of OA No.3274/2011 from the archives of the Tribunal as the order dated 30.01.2012 passed in that OA has not been filed by either of the parties. That record shows this Tribunal had already been told by the respondents in OA No.3274/2011 on 30.01.2012 that the applicants could be considered for promotion against the vacancy for the period from 01.04.2007 to 31.07.2007 and craved for an opportunity to do so. From the submissions of the respondents in the present OA as well as in the counter filed in OA 3274/2011 it is undisputed that in April - July 2007 there was a seniority list of 2004 in existence which was used for promoting other batchmates of the applicants in the same year; there was no dispute regarding their seniority; and, there were vacancies available. But the respondents did not hold DPC for filling up those vacancies and waited till 2009 when this Tribunal gave a direction to prepare a flawless seniority list, and the issuance of a finalised seniority list in 2012. There cannot be any 12 OA No.638/2014 dispute about the power of the respondents to decide whether to fill up certain vacancies or not. There also cannot be any dispute that an employee does not have a right to get promoted simply because there were vacancies available and he was eligible. These are settled questions in law. But it is also a settled principle that power has to be exercised by the authorities in accordance with law and principles of natural justice; if there was a decision not to fill up the vacancies during the period 01.04.2007 to 31.07.2007, despite the availability of eligible persons, the same should have been brought on record by the respondents indicating the reasons leading to such a decision, which was not done. In the absence of any submissions on these issues, we are unable to accept the contentions of the learned counsel for the respondents and do not get persuaded by the arguments in support of the stand taken in the present OA contrary to the one in the earlier OAs on the same issue. At the same time the applicants have also not brought on record any material that could place the above action of the respondents in the category of negligence, carelessness or malafide.
14. We have considered the judgments relied upon by the applicants and the respondents.
15. In Rudra Kumar Sain (supra) the writ petitions filed under Article 332 of the Constitution, some by the promotee and some by direct recruit officers of Delhi Higher Judicial Service, raised a 13 OA No.638/2014 question as to whether in determining inter-se-seniority between the promotees and the direct recruits the guidelines and directions given by the Hon'ble Supreme Court in the case of O.P.Singla vs. Union of India, (1984) 4 SCC 450 had been duly followed or not. The Hon'ble Supreme Court after taking note of various judgments on the subject, observed as follows:
"20. In Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In his view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be 'fortuitous/ad hoc/stop- gap' are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous."
16. It is obvious that in the present case where the issue is whether the applicants can claim promotion from the date of availability of vacancies, the aforesaid judgment would not be relevant.
17. In V.K.Jain (supra) the applicant was promoted to Group-A post in junior time scale on ad hoc basis and while he was so working he was inducted into Group-A junior scale by notification dated 22.07.1992. The applicant therein represented to the Secretary, Ministry of Railways saying that his induction to the Group-A post should be regularised against the vacancy of the year 1985 instead of the actual induction in 1992 as DPC ought to have been convened annually and a select list prepared in respect of each 14 OA No.638/2014 vacancy year. The post against which he was inducted in Group-A arose in the year 1985 but he became eligible for the same only in 1986 on completion of 3 years in Group-B service. The Hon'ble High Court of Delhi relying on Dr.Sahadeva vs. Union of India and ors., WP (C) no.5549/2007, decided on 28.02.2012, and in the light of the facts held that since there was no impediment in considering the applicant's case by convening the DPC in 1986 and the respondents had violated the mandatory requirement of convening the DPC, and holding so, the order of this Tribunal was set aside. The respondents were directed that as the applicant was otherwise found suitable and had already been given ad hoc promotion, his promotion/induction into Group-A would take effect not from 1992 but from 01.01.1987.
18. In G.D.Goel (supra) the Hon'ble High Court dealt with three writ petitions in a common order. Dealing with one of the writ petitions, relying on Union of India vs. K.V.Jankiraman and others, (1991) 4 SCC 109, the Hon'ble High Court reiterated the principle that once there was a mistake on the part of the department or negligence, carelessness or malafide, in not granting the promotion to the applicant, in such a case, he would be entitled to arrears of salary for the past period. In the other two writ petitions in this common order, the High Court took note of para 28 of Indian Railway Establishment Manual and came to the 15 OA No.638/2014 conclusion that the petitioners would not be entitled to the salary and allowances from a retrospective date.
19. In Union of India vs. Md. Sikandar Ali (supra) the Hon'ble High Court of Madras did not accept the contention of the petitioners - department that the pendency of litigation and non- convening of DPC had caused the delay in promotion and held that for the delay caused on the side of the petitioners the respondents cannot be blamed. The Hon'ble High Court upheld the order of the Tribunal ordering regularisation of the respondents from the date they were given ad hoc promotion.
20. In K.L.Taneja's case (supra) the Hon'ble High Court of Delhi took a view that the respondents were functioning on ad hoc basis as Regional Provident Fund Commissioner Grade-I from the date of vacancy held due and were receiving salary in the applicable grade and were subsequently regularised in the same post. As such there was no financial implication of the decision granting regular retrospective promotion to the respondents as they were already getting salary in the higher grade and earned annual increments. Leaving the question of seniority vis-a-vis direct recruits and promotees, the Hon'ble High Court did not interfere with the retrospective promotion of the respondents in that case.
21. In Captain Bindu Sethi (supra) the Hon'ble High Court applied the same principle that the delay on the part of the 16 OA No.638/2014 respondents in holding the DPC to consider the case of the petitioner was deliberate and malafide as the petitioner was denied the right to be considered for next promotion within a reasonable period of time after the vacancy had arisen and declare the petitioner to be allowed the subsequent promotion.
22. In Avinash Mishra (supra) the Hon'ble High Court took a view that the initial appointment of the respondent to the post of Senior Research Officer (Civil Engineering) was mainly ad hoc appointment without being interviewed by the UPSC, which was required under the rules, and the respondent was left in no manner of doubt that the said appointment was merely on ad hoc basis. Following the ratio laid down in Direct Recruit Class-II Engineering Officers Association Vs. State of Maharashtra and ors. the High Court annulled the retrospective promotion given to the respondent.
23. In Dr.Ranjan Chandra (supra) again, the Hon'ble High Court of Delhi did not accept the contention of the petitioner that the omission to consult UPSC at the time of ad hoc appointment was mere procedure of infirmity and did not allow retrospective promotion with effect from the date of ad hoc promotion of the petitioner.
24. The judgments discussed above make it clear that law does not recognise promotion from a retrospective date except when the delay in holding DPC by the respondents can be attributed to 17 OA No.638/2014 negligence, carelessness or malafide. The respondents have taken a stand that the DPC could not be held for the vacancies arising in the period 01.04.2007-31.07.2007 as the RRs had changed with effect from 01.08.2007. Though it might not be legally correct decision on their part we do not find sufficient reason to categorise it as "negligence, carelessness or malafide". Since these vacancies pertained to first four months of that year there could be a genuine belief that the entire vacancies of the year will be filled up in one go according to a common RRs i.e. the amended RRs. Therefore there is no merit in the prayer of the applicants for considering their promotion retrospectively from 2007. However, following the ratio of V.K.Jain, Sikander Ali and K.L. Taneja (supra) the applicants have claimed regularisation from the date of their ad hoc promotion and the same needs to be considered. From the averments in para 4.12 of the OA and with no additional inputs in the counter, it cannot be concluded that the prescribed process of promotion including consultation with UPSC was followed by the respondents before granting ad hoc promotion to the applicants. The ratio of Avinash Mishra and Dr. Ranjan Chandra (supra) therefore, holds us back from straightaway ordering retrospective promotion from the date of ad hoc promotion. We, however, note that (i) the applicants were eligible for promotion on the date they got ad hoc promotion; (ii) vacancies in their own quota were available (para 5.4 of the OA has not been denied by the respondents); (iii) there was 18 OA No.638/2014 no dispute about their seniority; as the applicants have held the post of SE (Civil) on ad hoc basis, (iv) there is no financial implication of retrospective promotion as noted by Hon'ble High Court in K. L. Taneja's case.
25. In the above circumstances we find it appropriate to direct the respondents to conduct a review DPC to consider the fitness of the applicants for promotion with effect from the date (s) of their ad hoc promotion. In the event of being recommended for promotion by the review DPC, they will be promoted with effect from the date(s) of their ad hoc promotion. The service rendered in the grade of SE (Civil) from that date onwards will count for the purpose of granting non-functional upgradation to the applicants in accordance with the rules. These actions, including the grant of NFU, if found eligible as per the rules, shall be completed by the respondents within a period of four months from the date of receiving a copy of this order. The OA is disposed of with these directions. No costs.
( V.N. Gaur ) ( A.K.Bhardwaj ) Member (A) Member (J) January 27, 2016 'sd'