Central Administrative Tribunal - Delhi
Smt. Prachi Nigam vs Union Of India on 7 July, 2010
CENTRAL ADMINISTRATVIVE TRIBUNAL PRINCIPAL BENCH OA 3663/2009 with OA 3097/2009 New Delhi this the 7th day of July, 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) OA 3663/2009 1. Smt. Prachi Nigam, W/o Shri Pankaj Nigam, R/o A-276, Sec 19, NOIDA UP 2. Smt. Renu Talwar, W/o Sh.Rajiv Talwar, R/o C-1/78, Janakpuri, New Dehi-58. 3. R.D. Kaushal, S/o Late Sh. Bhagat Ram Sharma, R/o 521 C, Sec-3, R.K. Puram, New Delhi-22. 4. Smt. Janet J. Chacko, W/o Sh. Chacko J. Thattil, R/o 7B Vijay Bhawan Toot Sarai, Malviya Nagar, New Delhi-17 5. M.V. Rappai, S/o Late Sh. Varred M.R. r/o 274/3, Arjun Nagar, Safdarjung Enclave, New Delhi-29 Applicants. (By Advocate Shri Arun Bhardwaj ) VERSUS 1. Union of India Through Secretary, Deptt. of Personnel and Training, Govt. of India, North Block, New Delhi. 2. The Secretary (R ), Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi. 3. Joint Secretary (Pers), Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi. 4. Shri MK Pyasi (now retd as Joint Secretary (Pers), Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi. 5. Bhargav Mitra 6. Rachna Srivastava 7. N.K.Rana 8. Sanjay Bhatt 9. K.K. Gupta 10. R.K.Verma 11. Ashima Kapoor 12. Raman Joy 13. Sh. Sujoy Sharma ( All the Respondents from Sr. 5 to 13 working as Under Secretaries with Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi). Respondents (By Advocate Shri A.K.Bhardwaj ) OA 3097/2009 Vinod Kumar Jain S/o Sh. Hari Ram Jain, R/o 2/133, Arya Nagar, Sonipat, Haryana. Applicant (By Advocate Shri Arun Bhardwaj) VERSUS 1. Union of India Through the Secretary (R ), Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi. 2. Secretary, Deptt. of Personnel and Training, Govt. of India, North Block, New Delhi. 3. Joint Secretary (Pers), Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi. 4. Shri MK Pyasi, Joint Secretary (Pers) (retd), Through Joint Secretary (Pers) Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi. 5. Bhargav Mittra 6. Rachna Srivastava 7. N.K.Rana 8. Sanjay Bhatt 9. K.K. Gupta 10. R.K.Verma 11. Ashima Kapoor 12. Raman Joy ( All the Respondents from Sr. 5 to 12 working as Under Secretaries with Cabinet Secretariat, 7, Bikaner House Annexe, Shahjahan Road, New Delhi). Respondents. (By Advocate Shri A.K.Bhardwaj ) O R D E R Shri Shanker Raju, Member (J):
As these two O.As are founded on common facts with identical questions of law, they are being disposed of by this common order.
2. In O.A. 3663/2009, applicants working as Under Secretaries with feeder category of Assistant Foreign Language Examiners (AFLEs), have sought to set aside the order dated 02.09.2008 passed in compliance with the directions of the Tribunal and also footnote in the Notification dated 13.03.2008 whereby Deputy Foreign Language Examiners (DFLEs) have been given an edge protecting their rights. Preparation of combined seniority list of AFLEs and DFLEs with further promotion as Deputy Secretaries is the claim propagated.
3. An identical claim has been raised in OA3097/2009. Applicants, who are in R&AW cadre of Cabinet Secretariat and from a feeder cadre of AFLEs, who are promotees, were in confrontation with DFLEs. They had earlier approached the Tribunal in OA 1317/2005, Vinod Kumar Jain Vs.Union of India and Ors., seeking merger of the posts of AFLEs and DFLEs, preparation of combined seniority list and grant of seniority from 01.01.1996. As a backdrop before implementation of the 5th CPC, the post of AFLE was in the pay scale of Rs.2000-3500, which was revised to Rs.8000-13500 by the 5th CPC. The recruitment to the various posts in the cadre is regulated by Research and Analysis Wing (Recruitment Cadre and Service) Rules, 1975. However, for DFLE, which is a direct recruitment post, no recruitment was made from 1985 till 1999. The next promotional post of Under Secretary (Language) was used to be filled up amongst the DFLEs whereby 50% quota was fixed for both the categories and the minimum length of service prescribed for eligibility was 5 years for DFLEs and 8 years for AFLEs. However, by an amendment in the recruitment rules in 2001, the residency period for both the categories was made five years.
4. In OA 2415/2004, O.K. Sharma Vs. Union of India & Ors. one of the AFLEs had challenged the percentage quota for both the cadres. However, the OA was dismissed but with an observation that the post of Under Secretary (Language) shall be filled up before the amendment of the rules in 2001 as per the unamended rules. Subsequently, on 13.09.1999, the post of DFLE was reclassified as Group `A post by a Presidential Order. Both the posts were made feeder categories to the posts of Under Secretaries. The applicants before the Tribunal propagated a case on upgradation of the post relying upon the DOP&T O.M. dated 04.02.1992 for grant of higher scale to the AFLEs at par with DFLEs and the claim for seniority was set up from 01.01.1996. It was also argued that reclassification of the post as Group `A from 01.01.1996 was illegal so the post of AFLE should also be treated as such. As the recruitment rules were not challenged in O.K. Sharmas case (cited supra), the respondents plea that notification for declaring a post in the scale of Rs.8000-13500 which has come into being from 01.01.1996, the applicants are deemed to have been appointed from that date and decision to reclassify the posts is contrary to Presidential Order. The Tribunal has also taken no proclamation of amended rules of 2008 whereby the posts of AFLEs and DFLEs were reclassified as Senior Interpreter. However, the merger in the grade of AFLEs and DFLEs and their re-designation as Senior Interpreter has been effected in such a manner that it does not cast an adverse impact on career prospect of the existing directly recruited DFLEs, who will continue to maintain their distinct identity till their promotion to the next grade of Under Secretary against their quota. The Tribunal while dealing with the contentions clearly observed and recorded a finding that when cadre consists of two different posts with having an identical pay scale, it would be invidious discrimination to treat those incumbents differently. It was also ruled that AFLEs were appointed prior to DFLEs and it has been observed that an invidious discrimination has been made by protecting the interest of the direct recruits, which shall maintain their distinct identity till their promotion to the next grade of Under Secretary. It was further observed that when two cadres are amalgamated, there cannot be a distinction in any of the parameters which would amount to treating equals unequally. Accordingly, reconsideration of the aspect of the merger of AFLEs and DFLEs strictly in accordance with law had been directed and till then promotion to the posts of Under Secretary (Language) was kept in hold.
5. Respondents passed an order on 02.09.2008 in compliance of direction of the Tribunal and in the guise of reconsideration whereby sitting over the order of the Tribunal and instead of considering the directions and observation thereof, a contradictory view has been taken while rejecting the claim of the applicants which was the subject matter of CP 357/2008 before the Tribunal. An order passed on 19.11.2008 clearly observed that the respondents are approbating and reprobating simultaneously and acting as an appellate authority. However, in the interest of justice to uphold the majesty of law, the directions were issued affording another opportunity to the respondents to pass a fresh order. The aforesaid order was carried before the High Court of Delhi by the respondents where the respondents counsel i.e. the applicants counsel in OA did not press the contempt and a liberty was given to the applicants (respondents before the High Court) to challenge the order of 02.09.2008 and to raise appropriate contentions in accordance with law. Hence, the present O.As.
6. Learned counsel for the applicants Shri Arun Bhardwaj stated that the order passed by the respondents is clearly in contempt of the Tribunals order. The respondents instead of reconsidering the entire issue in the backdrop of Tribunals directions rather took different stand, ignoring the directions of the Tribunal and have acted as an appellate authority over the Tribunal. It is also stated that the applicants as AFLEs have been appointed earlier to the DFLEs and there has been a clear cut merger and once the pay scales are at par with DFLEs, they cannot be discriminated. It is also stated that the process of further promotion of DFLEs whose interests have been protected unnecessarily, is in violation of Article 14 of the Constitution of India, they are being considered for next promotion as Deputy Secretary which has been stalled.
7. Learned counsel for the respondents denied the contentions and stated that the order passed on reconsideration is legal and as there is no amalgamation before 2008, protecting the interest of DFLEs, who are more qualified than the applicants, is not unusual upto the level of Under Secretary. Thereafter, they would be considered for next promotion along with the applicants and as such the order suffers from no infirmity. The decision of the High Court in S.N. Terdal Vs. Union of India & Ors. (WP (C) No. 4598/2007) decided on 07.07.2009 has been relied upon to contend that in the matter of merger, the directions issued by the Tribunal have not been found favour with and interests of all the employees are to be protected.
8. We have carefully considered the rival contentions of the parties and perused the material on record. Without going into the intricacy and complicity of the issue, at the outset we are on the issue of an order passed by the Tribunal on 02.09.2008 and the validity thereof. When a judicial fora directs consideration, more particularly making observations in the backdrop, these considerations, observations and the conclusions arrived are not to be treated otiose or non existent. A valid consideration in law pursuant upon directions of the Tribunal is to think over on active application of mind all relevant aspects of the matter, as ruled in Bhikhu Bhai Vithlavhai Patal & Ors. Vs. State of Gujarat & Anr. (2008 (4) Scale 278). In the above view of the matter, what we find from the record is that in Vinod Kumar Jains case (cited supra), the Tribunal has ruled and observed that there has been a merger of both the categories of AFLEs and DFLEs. Despite a strong view taken by the DOP&T to merge both the cadres and thereafter to lay down a combined seniority for further progression, the same has not been adhered to without any justification and reason. It has been further observed that when cadre consists of two different posts with having an identical pay scale, therefore, to treat them differently was not approved of being violative of Article 14 of the Constitution of India. It was also taking into consideration that DFLEs, who were appointed later on being treated senior and in a separate quota to favour them was not apt in law. After a categorical finding as to amalgamation of cadre by the amended rules of 2008, distinguishing between the direct recruitment and promotees amounted to treating equals unequally. However, while passing the order in compliance of the directions of the Tribunal, we find that one Shri M.K. Pyasi, Joint Secretary (Pers), has recorded a finding contrary to the Tribunals order by observing that mere fact of granting a higher pay scale or a mere fact of being granted a higher classified status i.e. Group A would not ipso facto have the effect of amending the statutory recruitment rules and the factum of pay scale and grant of seniority at par with DFLEs to AFLEs has not been agreed upon. Insofar as the inequality is concerned, it is stated that the posts of AFLEs and DFLEs are not completely identical posts. The posts of AFLEs are filled up by promotee officers with no minimum qualification laid down whereas the posts of DFLEs have a minimum qualification of post graduation and deliberately ignoring the factum of pay scale at par revised by the 5th CPC to both the categories, it has been ruled that no amalgamation has taken place and ultimately it resulted in rejection of the request of the applicants.
9. We are of the considered view that while reconsidering the aspect of merger of AFLES and DFLEs, none of the observations and conclusions arrived at by the Tribunal have been considered in its right legal perspective by the respondents. When reconsideration is done on whims and fancies not adhering to the dicta of the Tribunal, the order suffers from a serious legal infirmity. It appears that the Joint Secretary (Pers.) instead of reconsidering the matter as apt in law rather assumed the role of the appellate authority over the Tribunal and passed the order in total disregard of the Tribunals order, without dealing with the issues raised and adjudicated, which is no valid consideration in the eyes of law. No doubt, the contempt was withdrawn by the applicants but the contentions taken therein have been ordered by the High Court of Delhi to be raised in the petition and as the legality of the order dated 02.09.2008 has been challenged before us, only on this issue we have no hesitation to hold that the order cannot be sustained in law.
10. Resultantly, leaving open the merit of the case, we partly allow these O.As quashing the impugned order dated 02.09.2008. We remand the case back to the respondents with a specific direction to meticulously reconsider the aspect of the merger of AFLEs and DFLEs and grant of seniority on merger to both the categories of DFLEs and AFLES, strictly in accordance with the observations made by the Tribunal in OA 1317/2005 and pass a speaking order within two months from the date of receipt of a copy of the order. We also make it clear that till a fresh order is passed, promotion to the post of Deputy Secretary shall remain on hold. No costs.
11. Let a copy of this order be placed in O.A. 3097/2009.
( Dr. Veena Chhoray) (Shanker Raju) Member (A) Member (J) `SRD