Central Administrative Tribunal - Ernakulam
Reshmy vs M/O Labour on 16 January, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00903/2014
Tuesday, this the 16th day of January, 2018
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mr.E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
1. Reshmy C,
D/o.P.R.Chidambaram,
Data Entry Operator Grade B,
Employees Provident Fund Organization,
Regional Office, Trivandrum.
Residing at AN-10 C, Adarsh Nagar,
Pattom P.O., Trivandrum.
2. K.M.Joshy,
S/o.K.V.Mathew,
Data Entry Operator Grade B,
Employees Provident Fund Organization,
Sub Regional Office, Kochi.
Residing at Kizhakkumthala,
V.R.Puram (PO), Chalakudy, Trichur.
3. Asha G Nair,
D/o.R.Gangadharan Nair,
Data Entry Operator Grade B,
Employees Provident Fund Organization,
Sub Regional Office, Kottayam.
Vaniyapurakal House,
Kumaranelloor P.O., Kottayam.
4. Sumul Das P,
S/o.Kunhikandan,
Data Entry Operator Grade A,
Employees Provident Fund Organization,
SRO, Kozhikode.
Palapparambil House,
Kuthiravattom P.O., Calicut - 673 016.
5. Mahesh,
S/o.K.V.Manadevan,
Data Entry Operator Grade A,
Employees Provident Fund Organization,
Sub Regional Office, Kannur.
Residing at Thottathil House,
Dharmadam P.O., Thalassery, Kannur - 670 106.
6. Harikumar K,
S/o.G.K.Krishnan,
Data Entry Operator Grade A,
Employees Provident Fund Organization,
Sub Regional Office, Kollam.
Residing at TC 50/1353, Hariganesh,
Sathya Nagar, Karamana, Trivandrum - 695 002.
7. Sreekala S,
D/o.K.Sreenivasan,
Data Entry Operator Grade A,
Employees Provident Fund Organization,
Sub Regional Office, Kollam.
Residing at Sreeniketan, Dalavapuram,
Needakara P.O., Kollam - 691 582.
8. Sunil Kumar K,
S/o.late Kochunarayanan,
Data Entry Operator Grade A,
Employees Provident Fund Organization,
Regional Office, Trivandrum.
Residing at MRA A-19,
Thiruvathira, Menamkulam,
Kazhakuttom (PO), Trivandrum - 695 582.
9. Jyothy R,
D/o.N.Purushothaman,
Data Entry Operator Grade A,
Employees Provident Fund Organization,
Sub Regional Office, Kollam.
Residing at Sreeganesham,
Mundakkal (E), Kollam. . . . Applicants
(By Advocate Mr.P.Ramakrishnan)
Versus
1. Union of India represented by the Secretary,
Ministry of Labour and Employment,
New Delhi - 110 001.
2. The Employees Provident Fund Organization,
Bhavishyanidhi Bhavan, 14 Bhikaji Cama Place,
New Delhi - 110 001 represented by the
Central Provident Fund Commissioner.
3. The Regional Provident Fund Commissioner,
EPF Organization, Regional Office,
Bhavishyanidhi Bhavan, Pattom,
Thiruvananthapuram - 695 001. . . . Respondents
(By Advocate Mr.N.N.Sugunapalan,Sr. with Mr.S.Sujin [R2-3])
This application having been heard on 3 rd January 2018 the Tribunal on
16th January 2018 delivered the following :
ORDER
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER Applicants' case is as follows: They are Data Entry Operators (for short, DEO) working under the respondent Organisation. Their initial recruitment as DEOs was during the year 1998-1999. As per Notification dated 21.10.2003 Respondent No.2 made Recruitment Rules for the post of DEOs Grade A, Grade B and Grade C copies of which are marked as Annexure A-1, Annexure A-2 and Annexure A-3. Thereafter on 31.3.2003 Respondent No.2 published Annexure A-4 centralized seniority list of DEOs Grade A wherein applicants were at Sl.Nos.70, 80, 113, 156, 231, 267, 319, 325 and 332 respectively. Respondent No.2 amended Annexure A-1 to Annexure A-3 Recruitment Rules by Notification dated 4.5.2006 a copy of which is marked as Annexure A-5. Thereafter Respondent No.2 issued instructions to all regions to convene DPC for carrying out promotions to DEO Grade B and Grade C in accordance with the seniority position in Annexure A-4 seniority list and the list of eligible DEOs belonging to Grade A in each region was also circulated vide Annexure A-6. Kerala region of the respondent Organisation conducted DPC for promoting DEOs to higher grade as envisaged in Annexure A-5 but the Respondent No.2 vide letter dated 26.9.2006 observed that reservation roster has not been given effect and hence directed to convene a fresh DPC considering seniority position of DEOs Grade A in their respective regions from Annexure A-4 seniority list. Respondent No.3 vide letter dated 3.1.2007 (marked as Annexure A-8) pointed out that assessment of suitability of DEO Grade A on regional base would give undue weightage to juniors posted in other regions. Being aggrieved by conducting DPC at regional levels one Shri.Yogesh Kumar, DEO working under Respondent No.1 challenged the rejection of his claim for promotion under fitment to DEO Grade B and DEO Grade C in O.A.No.1972/2008 before the Principal Bench of this Tribunal. The Principal Bench vide Annexure A-9 order dated 3.3.2009 directed the respondents to consider applicants that OA for fitment to DEO Grade B and Grade C as per the initial fitment envisaged in the final seniority list of DEOs on all India basis. According to the applicants as Annexure A-9 order has attained finality the applicants are also entitled to relief granted in Annexure A-9 order. Though the applicants had made a separate representation vide Annexure A-10 dated 10.4.2003 before the Internal Grievance Committee of the Respondent No.2 for granting the benefit similar to the order in Annexure A9, the respondents issued Annexure A-11 Memo stating that the cadre of DEO has been declared as a dying cadre with effect from 30.5.2009.
2. Being aggrieved by Annexure A-11 and Annexure A-7 communications the applicants pray for relief as under :
A. Issue an order quashing and setting aside Annexure A-7 and Annexure A-11.
B. Issue an order directing the respondents to carry out the promotion in accordance with Annexure A-6, and C. Step up the pay of applicants at par with the juniors in the centralized seniority list or applicants be placed in the Rs.4200/- grade pay at par with the juniors.
D. Such other orders and directions as are deemed fit in the facts and circumstances of the case.
3. Respondent Nos.2-3 resisted the O.A by contending that as the DEO cadre is non-ministerial Group C class they have not been considered for the promotional posts in the mainstream. In order to provide promotions to the DEOs, the Organization introduced higher grades with higher pay scales such as Grade A, Grade B and Grade C vide Annexure A-1 to Annexure A-3 Recruitment Rules respectively. Regional Provident Fund Commissioner (Respondent No.2), being the appointing authority of DEOs, issued directions to all Regional Provident Fund Commissioners to conduct DPC and to grant upgradation to DEOs according to their seniority in the seniority list published on 1.10.2004 (Annexure A-4) and directions was issued to convene region wise DPCs granting upgradations in the respective region based on their seniority as per the aforesaid final seniority list. By changing the seniority to regional level and consequent upgradation as DEO Grade B and Grade C, Applicant Nos.1-3 were upgraded as Grade B and the others remained as Grade A. As juniors in the seniority list got upgradation in DEO Grade C in Maharashtra Region the applicants sent representation to the Head Office. In response to that representation the Head Office informed that consequent to the implementation of restructuring of the 'Information Service Division' in the Organisation the erstwhile cadre of DEO was declared as dying cadre with effect from 30.5.2009. According to the respondents, the Executive Committee of the Central Board of Trustees of the Organization in its 65 th Meeting held on 22.2.2009 had taken a decision restructuring the Information Service Division vide Annexure R-1 minutes. Since the cadre of DEO was declared as dying cadre with effect from 30.5.2009 all the DEOs including the applicants were given an opportunity for conversion to Data Processing Assistant (for short, DPA) which is a higher post.
4. According to the respondents the aforesaid Executive Committee of the Central Board of Trustees which met on 22.9.2009 pointed out that Electronic Data Procession Centers of the Regional and Sub Regional Offices of the Organization have critical importance and hence decided to make technical posts carrying higher responsibilities and also to appoint officials with more technical qualifications. As the first phase of implementing that decision all qualified DEOs in the Organisation were appointed as DPAs with a better pay scale. The rest of the DEOs who did not possess the required qualification were given the facility to acquire qualification within a period of next two years for conversion to DPAs. Respondent No.2 requested to all the Regional Provident Fund Commissioners to provide region wise seniority list of DEOs of all Grades to obtain a basic record for preparing seniority list of DPAs. The Recruitment Rules of DPA was notified in the Gazette of India with effect from 30.5.2009 and by such notification the post of DEO became a dying cadre of the Organization with effect from 30.5.2009.
5. Respondents state that Annexure A-9 order passed by the Principal Bench has been stayed by the Hon'ble High Court of Delhi in W.P.No.10414/2009 till the disposal of that W.P.
6. According to the respondents applicants could not be converted as DPAs as they did not have the requisite educational qualification or they opted out of being converted to DPAs due to their personal reasons. Respondents points out that the applicants have failed to take advantage of the restructuring of IT professionals in EPFO. The present O.A has been filed only in 2014 after the expiry of the time limit of two years given to the DEOs for obtaining the qualifications to become DPAs and without to disclosing the policy decision made by the Central Board of Trustees for restructuring the cadre of DEOs. The applicants are raising unnecessary issues of seniority as an after-thought and after losing their chance to become DPAs. Respondents pray for rejecting the O.A.
7. A rejoinder was filed by the applicants producing Annexure A-12 to Annexure A-14 representations filed by various unions/associations of the EPF staff and also the representations made by one Smt.Mini. In the rejoinder the applicants contend that they are similarly situated to the applicants in Annexure A-9 order and that they have not misled this Tribunal and that the only attempt of the respondents is to give a march over to certain officials who are in the bottom seniority in Annexure A-4 seniority list of the DEOs. Applicants did not accept conversion to DPAs as such an option was permitted by the respondents.
8. We have heard learned counsel appearing for the applicants and learned standing counsel for Respondent Nos.2-3. Respondent No.1 being an eo-nominee party, no separate reply statement was filed by that respondent.
9. The thrust of the contentions of the Respondent Nos.2-3 is that the Executive Committee of the Central Board of Trustees in its 65 th Meeting held on 22.2.2009 had taken a decision, as per Annexure R-1 minutes, for restructuring the Information Service Division of the Organisation. According to them a new cadre of DPA was introduced in the Information Service of the EPFO after giving an opportunity to all existing DEOs to acquire the requisite qualifications prescribed in the Recruitment Rules newly framed for DPAs. It is also stated that the existing DEOs having the requisite qualifications were appointed as DPAs and other DEOs without such qualifications were granted two years time to acquire such qualifications. The applicants in their rejoinder seem to tacitly admit the restructuring occurred in the cadre of Information Service Division of the Organisation.
10. It is settled law that creation of post, cadres including restructuring and abolition of cadres is within the province of the administration. In P.U.Joshi & Ors. Vs. Union of India & Ors. 2003 (2) SCC 632 the Apex Court held :
''10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.''
11. When the Organisation decided to direct the Regional Provident Fund offices to apply reservation as well as seniority on regional basis for promotion under fitment to DEO Grade B, one DEO had challenged it before the Principal Bench of this Tribunal in O.A.No.1972/2008 wherein vide Annexure A-9 order the Tribunal had directed the respondent Organisation to grant promotions based on all India seniority list (marked as Annexure A-4). According to Respondent Nos.2-3 Annexure A-9 order of the Principal Bench has been stayed by the Hon'ble High Court of Delhi.
12. Respondent No.2 has introduced the new restructured cadre with effect from 30.5.2009. According to the respondents raking up of the seniority issue in the instant case is a 'camouflage' employed by the applicants when they were faced with the prospect of not getting the post of the restructured post of DPA for which they had been given time of two years to acquire qualifications, as they did not have the requisite qualification as per the new Recruitment Rules for the restructured cadre of DPAs.
13. Though the applicants have been taciturn about the cadre restructing that had occurred in the Organisation with effect from 30-5-2009, they seem to meekly admit that they have the right to opt out of being posted as DPAs. Respondents point out that the O.A has been filed long back in 2014, much later than the restructuring that had taken place in the Organization and that after the expiry of the two years time granted to all DEOs for acquiring the qualification required for the post of DPA. We find some force in that contention.
14. Even though Annexure A-9 order passed by this Tribunal is binding on us, in the light of the new development that had taken place in the Organisation, we are of the view that the applicants are not entitled to the relief sought in this O.A. As observed in P.U.Joshi judgement of the apex court (supra), it is within the right of the Administration/Government to create new cadres and even abolition of the existing cadre. the Respondents state that with the introduction of the new restructured cadre of the Information Service under the EPFO, the DEOs have become a vanishing/dying cadre. We are of the view that the applicants cannot at such a late stage, after the introduction of new restructured cadre, claim the benefit of Annexure A-9 order or the benefit of Annexure A-4 seniority list. Suffice it to say that Annexure A-4 seniority list has lost its usefulness (exept for the remaining DEOs) on account of the restructuring of the Information Service and creation of a new cadre of DPA.
15. In the result, the Original Application is dismissed. No order as to costs.
(Dated this the 16th day of January 2018)
(E.K.BHARAT BHUSHAN) (U.SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
List of Annexures in O.A.No.180/00903/2014
1. Annexure A-1 - True copy of Rules regulating the method of recruitment to the post of Data Entry Operators Grade A.
2. Annexure A-2 - True copy of Rules regulating the method of recruitment to the post of Data Entry Operators Grade B.
3. Annexure A-3 - True copy of Rules regulating the method of recruitment to the post of Data Entry Operators Grade C.
4. Annexure A-4 - True copy of seniority list published as per letter dated 29.9.2004 of the 1st respondent.
5. Annexure A-5 - True copy of notification dated 4.5.2006 issued by the 2nd respondent.
6. Annexure A-6 - True copy of Circular dated 8.6.2006 issued by the 2 nd respondent.
7. Annexure A-7 - True copy of letter dated 26.9.2006 issued by the 2 nd respondent.
8. Annexure A-8 - True copy of letter dated 3.1.2007 from the 3 rd respondent to the 2nd respondent.
9. Annexure A-9 - True copy of Order dated 3.3.2009 in O.A.No.1972/2008 of the Principal Bench of Central Administrative Tribunal.
10. Annexure A-10 - True copy of representation dated 10.4.2013 submitted by the 1st applicant before the Internal Grievance Committee of the 2nd respondent.
11. Annexure A-11 - True copy of Memo dated 7.1.2014 issued by the 2 nd respondent.
12. Annexure A-12 - True copy of representation dated 8.12.2014 submitted by Smt. Mini.S.
13. Annexure A-13 - True copy of representation dated 20.6.2007 submitted by the All India Employees Provident Fund Staff Federation.
14. Annexure A-14 - True copy of representation dated 9.6.2012 submitted by EPF Staff Association, Kerala before the 2nd respondent.
15. Annexure R-1 - True copy of the Minutes of the meeting dated 22.2.2009.
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