Central Administrative Tribunal - Jabalpur
Rajendra Kumar Vishnoi vs Union Of India (Uoi) And Ors. on 17 February, 2004
Equivalent citations: 2005(1)SLJ12(CAT)
ORDER G. Shanthappa, Member (J)
1. The above O.A. has been filed by the applicant seeking the following main reliefs:
(i) Summon the entire relevant record from respondents No. 2 & 3.
(ii) Set aside the promotion order of the respondent No. 4 as Assistant in pursuance to the D.P.C. held on 30.7.1993.
(iii) direct the respondents to take DPC/Review DPC to consider the case of the applicant w.e.f. 7.12.1993 with all consequential benefits.
(iv) direct the respondents to give consequential benefits to the applicant by treating him absorbed as U.D.C. in the Tribunal at par with other similarly situated employee such as Shri Dave, Vandhey and others, and
(v) Any, other order/orders which this Hon'ble Tribunal may deem fit and proper may also be passed.
2. The first respondent has framed the rules called "Central Administrative Tribunal (Group 'B' and 'C Miscellaneous Posts) Recruitment Rules, 1989. Under the said recruitment rules, 62 posts of Assistant were notified to be filled up by selection. Clause 5 under the said recruitment rules, reads as under:-
" Absorption/regularisation of existing employees.
(1) Notwithstanding anything contained in the provisions of these rules, the persons holding the posts of Court officer/section officer, Hindi Translator, Assistant, Junior Librarian, Care-taker, Upper Division Clerk/Receptionist/Store-keeper and Lower Division Clerk on the date of commencement of the rules cither on transfer or on deputation basis or as the case may be on direct recruitment basis and who fulfil the qualifications and experience laid down in the rules and who are considered suitable by the Departmental Promotion Committee shall be eligible for absorption/regularisation in the respective grade subject to the condition that such persons exercise their option for the absorption and that their parent departments do not have any objection to their being absorbed in the Tribunal.
(2) The seniority of officers mentioned in sub-rule (i) shall be maintained with reference to the dates of their regular appointment to the posts concerned.
Provided that the seniority of officers recruited from the same source and in the posts held by them in the parent department shall not be disturbed.
(3) The suitability of persons for absorption may be considered by a Departmental Promotion Committee."
The relevant columns are extracted below:
"1. Assistant
3. General Central Service Group 'B' Non-gazetted Ministerial.
4. Rs. 1400-40-1600-50-2300-EB-60-2600.
5. Selection.
10. Two years probation.
11. By promotion failing which by transfer or transfer on deputation.
12. Promotion: Upper Division Clerk with 5 years regular service in the grade. In the case of transfer or transfer on deputation Persons possessing a degree from a recognised University and holding:
(a) analogous post on regular basis in the Central/State Government/ High Court/Subordinate Courts.
(b) Posts in Central/State Government/High Courts/Subordinate Courts in the scale of Rs. 1200-2040 with 5 years regular service in the grade.
Note: The period of deputation including the period of deputation in another excluder post held immediately preceding this appointment in the same or some other organisation/department of the Central Government shall ordinarily not exceed three years.
13. (i) Vice Chairman:
(ii) Member (to be nominated by the Chairman) and (iii) Registrar * Vice Chairman shall be the Chairman of the Departmental Promotion Committee."
2.1 Subsequent to the said Rules, Central Administrative Tribunal, Principal Bench, New Delhi has issued the guidelines dated 14.11.1990 regarding service matters with regard to non-gazetted staff in the Central Administrative Tribuna-delegation of powers. According to the said guidelines, relevant portion has been extracted below:
"Considering the fact that the recruitment rules have already been finalised and also that the Hon'ble Chairman had delegated powers to the concerned Vice-Chairman with regard to certain administrative and financial matters, it has now been decided that concerned Vice-Chairman may themselves deal with the service matters, such as recruitment, promotion, regularisation etc. in respect of non-gazetted staff of the Central Administrative Tribunal. So far as the question of declaring the Disciplinary Authority and the Appellate Authority under the CCS (CCA) Rules, 1965 is concerned, matter is being considered separately and necessary notification would be issued in due course. Meanwhile, it is hereby decided that henceforth concerned Vice-Chairman may deal with the service matters with regard to the non-gazetted staff without making a formal reference to the Principal Bench subject to the following conditions:
(i) Provisions of the recruitment rules are standing instructions of the Government of India as well as instructions issued from time to time by the Hon'ble Chairman may be followed strictly and in no case the provisions of recruitment rules or any other orders may be relaxed. For certain category of posts where the given mode of recruitment is by transfer or transfer on deputation of persons holding analogous posts or a particular feeder post with requisite number of years of service the laid down criteria in the Department of Personnel and Administrative Reforms O.M. No.14017/28 75-Estt.(D) (Part) dated 7.3.1984 for determining analogous posts may have to be followed. So far as the posts under Central Government are concerned, all of the criteria laid down in the said O.M. are required to be satisfied. It is also necessary to see that no ineligible candidate is appointed by treating a particular post as an analogous to that of a particular post in Central Administrative Tribunal as would tantamount to violation of recruitment rules. Some of the guiding factor in this regard may be the channel of promotion, the nature of duties and qualifications, prescribed as per the recruitment rules. For both the posts these factors should be identical in nature. As far as the posts under the State Government arc concerned, it is quite likely that even posts with an identical designation may not have comparable scales of pay and they may also differ with preference to the extent of stage of merger of D.A. with pay. These posts may not be identical with regard to classification of posts etc. Thus mere nomenclature and/or time scale attached to the post would not be suffice to determine whether the post could be treated as analogous post. What is required to be seen is that the nature of duties performed by the candidates in their parent department vis-a-vis those in the posts under selection and qualifications and experience required for the post under the Central Government are of identical nature. Hence utmost care is to be exercised while treating a particular post to be an analogous post or not, so that there may not be any violation of recruitment rules. In order to ensure uniformity in all the Benches, before treating a particular post as an analogous post, a reference may be made to the Principal Bench.
(ii) No appointment or regularisation, absorption etc., may be made, retrospectively.
(iii) Wherever recruitment rules provide that the post may be filled up either by transfer or transfer on deputation or by direct recruitment etc., whichever mode of recruitment may be considered appropriate by the Hon'ble Chairman of the Central Administrative Tribunal, a proposal may invariable be sent to the Principal Bench for obtaining approval of the Hon'ble Chairman, though the post may fall in the classification of posts for which concerned Vice-Chairman has been authorised to deal with the service matter. While sending the proposal, full justification may be given as to why a particular mode of recruitment is being proposed.
(iv) .......................
(v) Wherever, as per the provisions of the recruitment rules, the quota has been given in respect of filling up of the posts of a particular category by various modes of recruitment, e.g. direct recruitment, promotion etc., posts may be filled up strictly according to the allotted quota. The instructions with regard to the filling up of the posts by way of direct recruitment have been issued separately under this Tribunal's letter No. 1/144/90-Estt.,dated7.11.1990."
2.2 The brief facts of the case as submitted by applicant, are that under the said rules, the applicant and the respondent No. 4 are the candidates for the post of Assistant before the Departmental Promotion Committee/Selection Committee, whose particulars arc given as under:
---------------------------------------------------------------------"Particulars Applicant Respondent No. 4
---------------------------------------------------------------------
Date of appoint- 8.8.1973 28.2.1979
ment in the par- L.D.C. Jr. Librarian-cum-
ent deptt. & Forms Clerk.
post on which
appointed.
Name of the O/O the Distt. O/O the Distt.
parent deptt. & Sessions & Sessions Judge,
Judge, Jabalpur. Damoh.
Date & post of 6.1.87 as LDC (1) 1.12.89 as UDC
initial appoint- 7.12.88 as UDC (2) 19.1.90 as UDC
ment in the CAT against the post
Jabalpur on of Jr. Librarian,
deputation. (3) 30.3.90 as Jr.
Librarian.
(4) 13.11.92 as
Assistant.
Date of proforma 30.4.90 on Nil
promotion in the the post of
parent deptt. UDC.
Date of absorp- w.e.f. 1.11.89 w.e.f. 4.8.93 on
tion in the CAT (with retros- the post of
and post on pective effect) Assistant by
which absorbed. on the post of the Jabalpur
L.D.C. by Prin- Bench.
cipal Bench.
(Note ; Order of absorption
was communicated to the
applicant on 9.11.1990,
whereas applicant became
UDC in the parent deptt.
w.e.f. 30.4.1990"
---------------------------------------------------------------------
2.3 The 4th respondent was not qualified to be considered for the post of Assistant before the Departmental Promotion Committee/Selection Committee which was held on 30.7.1993 as prior to the date of D.P.C., he did not complete five years of service as U.D.C. The applicant is working as UDC in this Tribunal from 7.12.1988. According to the service particulars mentioned above which clearly shows that the 4th respondent was not eligible to be placed before the D.P.C. The said D.P.C/Selection Committee consisted of Chairman (i.e. Vice Chairman of The Tribunal), Member and the Registrar.
2.4 According to the recruitment rules and the guidelines, referred to above, the Member has to be nominated by the Hon'ble Chairman to participate in the DPC/Selection Committee. But in the said DPC, there was no nomination of the Member, who participated in the DPC/Selection Committee.
2.5 The UDCs are in the pay scale of Rs. 1200-2040 (pre-revised) whereas the Librarian are in the pay scale of Rs. 1400-2600/- as per notification issued by the Principal Bench dated 14.11.1990. The term/tenure of deputation is also prescribed wherein it is mentioned that the deputation can be for a maximum period of three years. The respondent No. 4 would have been given extension of deputation only after obtaining orders of the Hon'ble Chairman, Central Administrative Tribunal, Principal Bench, New Delhi. No such order was ever obtained from the Hon'ble Chairman. Thus the continuation and enjoyment of benefit after the extension of period of deputation is void, ab initio, without jurisdiction and bad in law.
2.6 The post of Assistant can be filled up by promotion of U.D.C. who has put in five years regular service in the grade or in the case of transfer or transfer on deputation person possessing a degree from a recognised University and holding (a) analogous post on regular basis in the Central/State Government/High Court/Subordinate Courts; (b) Posts in Central/ Slate Government/High Court/Subordinate Courts in the scale of Rs. 1200-2040 with five years regular service in the grade. It is pertinent to mention here that respondent No- 4, who was initially appointed as Junior Librarian-cum-Forms Clerk in temporary capacity was subsequently came on deputation to this Tribunal as U.D.C. He became Junior Librarian on 30.3.90 and on 13.12.1992 he was made Assistant on temporary post of deputation. The said order makes it clear that it was made only from 13.12.1992 till the expiry of two years deputation term. There is no order for treatment of the post as analogous post.
2.7 The service particulars of the 4lh respondents are against the guidelines dated 14.11.1990 issued by the Principal Bench of this Tribunal.
2.8 The D.P.C. met on 30.7.1993 and selected the 4th respondent as Assistant. The entire procedure followed by the DPC is not in accordance with the recruitment rules and guidelines dated 14.11.1990. The order dated 6.8.1993 in respect of appointment of respondent No. 4 as Assistant is produced at Annexure A-13. Since the respondent No. 4 was not qualified for consideration for appointment to the post of Assistant as on 30.4.1990 under the said recruitment rules, his selection as Assistant is bad in law and is liable to be quashed.
2.9 When the applicant came to know about the selection of the respondent No. 4 to the post of Assistant, he made a representation to the Hon'ble Chairman to consider his case in view of the injustice caused to him under the illegal selection process. To the said representation dated 28.09.1995, the applicant received the reply from respondent No. 2 on 20.2.1997 as per RJ/2 informing the applicant that Shri A.K. Dave had more than 11 years of relevant experience for the post of Assistant on the date of D.P.C. met whereas he had not completed even the minimum required service of five years on that date. The vacancy of Assistant had to be filled in according to the exigency of service and chances of promotion is not a condition of service.
2.10 Subsequently the applicant submitted another representation on 14.03.1997 giving the full particulars of the applicant and the 4th respondent and also the procedure to be followed by the D.P.C./Selection Committee. The applicant did not receive any reply to that representation. Once again he had submitted his representation dated 08.01.1998 explaining the rule position and giving the service particulars with a request to consider his case for the post of Assistant by conducting a review selection process. In pursuance to the said representation dated 08.01.1998, the applicant received the impugned order daledl9.08.1998 (A/1) rejecting his representation on the ground that the applicant has no locus standi in the case.
3. The official respondent Nos. 1 to 3 have filed their reply denying the averments made in the O.A. The main ground taken by the respondents are that since the applicant has approached this Tribunal after a lapse of six years that too without filing an M.A. for condonation of delay, the application is barred by limitation, and on this ground the O.A. is liable to be dismissed. The other grounds taken by the respondents are that the applicant came on deputation to CAT Jabalpur as L.D.C. the post which he held in his parent department i. e. District & Sessions Judge's office, Jabalpur in the pay scale of Rs. 515-800/ old scale and Rs. 870-1420/- (revised scale) on 6.1.1987. He became ad-hoc Upper Division Clerk w.e.f. 7.12.1988 by order dated 7.12.1988 and thereafter by order dated 18.09.1992, he was promoted as store-keeper w.e.f. 07.12.1988 on regular basis. Under the said recruitment rules, the applicant did not fulfil/satisfy the eligibility condition to be brought into zone of consideration. The applicant has no locus standi to question or assail the DPC selection held on 30.7.1993 and the promotion/appointment order issued on 6.08.1993 in favour of respondent No. 4 on the post of Assistant.
3.1 They have further contended that this Tribunal has no jurisdiction as the applicant desires redressal against the orders of Ex-Vice Chairman and presently the Jabalpur Bench is being headed by the Hon'ble Vice-Chairman.
3.2 The mode of appointment under the schedule, appended to the Service Rules for the posts of Assistant are three i.e. by promotion, failing which by transfer, or transfer on deputation. Relevant for the purpose is second mode which provides that persons possessing a degree from recognised University and holding analogous post on regular basis in the Central/State Govt./High Court/Subordinate Courts or in the pay scale of Rs. 1200-2040 with five years regular service in the grade. The respondent No. 4 has been working in his parent department in the grade of Rs. 195-220 (Revised Rs. 575-15-800-20-880/-, rerevised 975-25-1000/- 30-1210/- 40-1450-50-1650/-) Rerevised 1150-30-1210-40-1450-1850/- on the post of Junior Librarian-cum-Forms Clerk w.e.f. 28.2.1979 in the office of District & Sessions Judge, Damoh, the post equivalent to U.D.C. The 4th respondent was appointed on deputation as U.D.C. w.e.f. 1.12.1989 in the Central Administrative Tribunal, Jabalpur Bench in the pay scale of Rs. 1200-2040/- and thereafter he was appointed as Junior Librarian w.e.f. 19.01.1990 in the pay scale of Rs. 1400-2600/-. As such as on the date of DPC i.e. 30.07.1993, there was no eligible person except respondent No. 4 who made request for appointment as Assistant/absorption as Assistant on the said date had completed 14 years of service out of which more than 11 years as UDC and was working in the pay scale of Rs. 1400-2600/- since 30.3.1990. The parent department's consent was conveyed for his permanent absorption in this Tribunal. In the mean while, 4th respondent also given his willingness for his permanent absorption. In terms of the guidelines issued by the Principal Bench dated 14.11.1990, the 4th respondent was absorbed to the post of Assistant w.e.f. 6.8.1993 i.e. the date of promotion.
3.3 The absorption of the 4th respondent to the post of Assistant has also received the approval of the Hon'ble Chairman. The DPC/Selection Committee constituted was as per law and guidelines issued by the Principal Bench.
3.4 Since the applicant has been regularised as UDC w.e.f. 7.12.1988 by order dated 18.09.1992, the entitlement of the applicant to the post of Assistant is dependent upon satisfaction/fulfilment of the eligibility conditions as per the schedule appended to the service rules. Since the applicant did not fulfil the eligibility condition of having 5 years regular service as UDC on the date of DPC i.e. 30.7.1993, on claim whatsoever can be made by the applicant for promotion to the post of Assistant by the said D.P.C. 3.5 The post of Junior Librarian is higher post than the UDC carrying pay scale of Rs. 1400-2600/- was not mentioned by respondent No. 4. There is no change of cadre, however, due to administrative exigencies he had been appointed as Jr. Librarian equivalent to the post of Assistant. There is no statutory rules that deputation period cannot be extended beyond three years on mandatory terms. Continuance on deputation and absorption on deputation are dependent upon administrative exigencies and functional requirement of the organisation. The official respondents have not violated the statutory rules. The respondents have admitted that the pay scales of UDC 1200-2040 (pro-revised) were the same as that of the Junior Librarian-cum-Forms Clerk. Moreover, when the applicant himself is not qualified and lie was not eligible for the post of Assistant to be considered for the selection under the said D.P.C., he cannot challenge the selection process of the 4th respondent as he has not fulfilled the conditions under the recruitment rules. Hence, the application is liable to be dismissed.
4. The 4lh respondent has filed his reply on the same grounds, which are taken by the official respondents. He has given his service particulars that he was absorbed in the post of Assistant in the pay scale of Rs. 1400-2600/-(pre-revised) w.e.f. 6.8.1993. The order dated 6.8.1993 has not been challenged by the applicant in the application. Some of the particulars of the 4th respondent given by the applicant are admitted. He has clarified some of the facts regarding his service particulars which arc in comparison with applicant and one Shri. J.B.N. Shrivastava as per RJ/7, which are re-produced below:
Applicant (R.K. Vishnoi) Respondent No. 4 (A.K. Dave) JPN Shrivastava (Ad hoc S.O.) 1- fu;qfDr fnuk¡d 8-8-1973 fu;qfDr fnuk¡d 28-2-1979 fu;qfDr fnuk¡d 30-10-1974 2- in & fu- Js- fy-A mPp Js.kh fyfid ds in ij vLFkk;h :i ls xzaFkikyA in & fu- Js.kh fyfidA 3- fnuk¡d 8-8-1973 ls fnuk¡d 6-12-1988 rd fu- Js- fyfidA fnuk¡d 28-2-1979 ls fnuk¡d 30-11-1989 in xzaFkiky ftyk ukftj ,oa izLrqrdkj ¼lHkh m- Js- fy- in½A fnuk¡d 30-10-1974 ls fnuk¡d 30-6-1986 rd fu- Js- fyfidA 4- fnuk¡d 6-1-1987 dks fu- Js- fy- ds in ij dsUnzh; iz'kk- vf/kdj.k] tcyiqj esa izfrfu;qfDr ij fu;qfDrA fnuk¡d 1-2-1989 dks m- Js- fy- ds in ds- iz'kk- vf/kdj.k tcyiqj esa izfrfu;qfDr ij fu;qfDrA fnuk¡d 5-7-1986 dks ds- iz'kk- vf/k- tcyiqj esa m- Js- fy- ds in ij izfrfu;qfDr ij fu;qfDrA 5- fnuk¡d 7-12-1988 dks m- Js- fy- inA fnuk¡d 13-11-1992 dks lgk;d ds in ij izfrfu;qfDr ij fu;qfDrA fnuk¡d 5-7-1986 ls fnuk¡d 3-8-1993 rd m- Js- fy- ds in ijA 6- fnuk¡d 1-11-1989 dks fu- Js- fy- ds in ij ,Ctkjos'kuA fnuk¡d 4-8-1993 dks lgk;d ds in ij ,Ctkjcs'kuA fnukad 1-11-1989 dks m- Js- fyfid ds in ij ,Ctkjcs'ku ,oa fnuk¡d 4-8-1993 dks m-
Js- fyfid ls lgk;d ds in ij inksfUufrA 7- orZeku esa lgk;d in ¼,MgkWd½A orZeku esa vuqHkkx vf/kdkjh ¼,MgkWd½A orZeku esa vuqHkkx vf/kdkjh ¼,MgkWd½ 4.1 According to the said particulars, the 4th respondent was eligible and he was accordingly considered for the post of Assistant by the D.P.C. and there is no illegality committed by the respondents. The entire selection process is in order. Since he is working for a quite long time i.e. from 6.8.1993 as Assistant, at this stage the selection process shall not be disturbed. If the applicant was qualified as on the date of holding of D.P.C. then only he has locus standi to challenge the selection process. Hence, the application is liable to be dismissed. In support of his case, 4th respondent has cited the judgment of Hon'ble Supreme Court rendered in the matter of Ramesh Chand Sharma v. Udham Singh Kamal, AIR 1999 SC 3837. In the said judgment the application was filed after an inordinate delay without filing an M.A. for condonation of delay, hence the same was rejected in view of Section 21 of the A.T. Act. The 4th respondent has also relied on the judgment of the Hon'ble Supreme Court rendered in the matter of S.S. Rathore v. State of Madhya Pardesh, 1989(5) SLR 779.
5. The applicant has filed the rejoinder to the replies of the respondents. In the rejoinder it is slated that the DPC/Selection Committee held on 30.7.1993 consequent upon which the impugned order Annexure A-13 in favour of respondent No. 4 was issued. The applicant feeling aggrieved with the said order preferred representations to the Hon'ble Vice-Chairman. The said representation was rejected on 20.2.1997. Feeling aggrieved with this rejection, the applicant preferred an appeal before the Hon'ble Chairman. The said representation/appeal was also rejected by the Hon'ble Chairman on 19.08.1998. Hence, from the date of impugned order till the date of filing the present original application, there is no delay. Hence, the application has been filed by the applicant well within time.
5.1 The applicant has submitted that although he had not completed five years regular service as on the date of holding of DPC i.e. 30.07.1993, yet his right of consideration and claim on the post of Assistant cannot be taken away by illegal D.P.C. by considering an ineligible candidate i. e., respondent No. 4. The service particulars under the chart submitted by the 4th respondent does suppress material facts. The 4th respondent has himself admitted that the applicant became UDC w.e.f. 7.12.1988, The applicant denied that the 4th respondent enjoyed more than 11 years as UDC or equivalent or on analogous post. The 4th respondent was appointed as Libraria-cum-Forms Clerk and was directed to work as U.D.C. in his parent department. The pay scale of the Librarian-cum-Form Clerk in his parent department is Rs. 1150-1850 whereas the pay scale of UDC in CAT is Rs. 1200-2040/-. The pay scale of Jr. Librarian in CAT is Rs. 1400-2600/-. Accordingly neither because of nature of work/job nomenclature nor as per the pay scales, the post of Librarian-cum-Forms Clerk/ Jr. Librarian in CAT/UDC in parent department of respondent No. 4 can be said to be an analogous post in CAT for the purposes of eligibility for the post of Assistant under the recruitment rules.
5.2 As per the guidelines dated 14.11.1990 before treating a particular post as an analogous post, a reference was to be made to the Principal Bench. It is hereby denied that the 4th respondent has rendered 13 years of regular service as UDC w.e.f. 28.2.1979. It is further denied that he was never appointed as UDC which is clear from his appointment letter at Annexure RJ/4, which was issued by this Tribunal.
6. We have heard Mr. S. Paul, learned Counsel for the applicant, Mr. S. A. Dharmadhikari, learned Counsel for the official respondents and Mr. S.K. Nagpal, learned Counsel for the 4th respondent and have perused the pleadings, documents and the original DPC proceedings including the judgments cited by either side.
6.1 After perusal of the pleadings and the rule position, the following questions have arisen which are required to be considered to decide the case:
(i) Whether the Member of the D.P.C./Selection Committee was nominated by the Hon'ble Chairman?
(ii) Whether the guidelines dated 14.11.1990 issued by the Principal Bench of the Tribunal and D.P.A.R. O.M. No. 14017/28/75- Estt. (D) (Part) dated 7.3.1984 for determining an analogous post have been followed?
(iii) Whether the applicant and the 4th respondent have fulfilled Rule 5 regarding absorption/regularisation of existing employees, under the rules called Central Administrative Tribunal (Group 'B' and 'C Miscellaneous Posts) Recruitment Rules, 1989?
(iv) Whether the D.P.C/Selection Committee proceedings conducted on 30.7.1993 for the selection of Assistant is valid?
(v) Whether the applicant has locus standi to challenge the impugned order of selection of the 4th respondent?
(vi) Whether the application is barred by limitation?
(vii) Whether this Tribunal has jurisdiction to entertain the present Original Application?
6.2 The above questions are being dealt with as under :
We perused the original selection proceedings.
(i) As regards to question No. (i), in the proceedings we find that there is no orders from the Hon'ble Chairman that the Member of the DPC/Selection Committee has been nominated to participate in the DPC proceedings held on 30.7,1993, which is the mandatory requirement under the rules. As the Hon'ble Chairman has not nominated the Member to sit in the DPC proceedings, the said person/Member is not a Member of the DPC in the eye of law. Hence, the proceedings of the DPC are illegal, contrary to rules and bad in law. Accordingly, the answer to question No. 1 is in affirmative.
(ii) As regards to question No. (ii), in the DPC proceedings nowhere it is found that the post of U.D.C. has been treated as an analogous post, no orders are issued by the Competent Authority under the said guidelines dated 14.11.1990 and DPAR O.M. dated 7.3.1984. Hence, the D.P.C./Selection Committee has violated the condition No. 1 of the guidelines issued by the Principal Bench while conducting the DPC proceedings. Under the said condition, it is also necessary to see that no ineligible candidate is appointed by treating a particular post as an analogous to that of a particular post in Central Administrative Tribunal as would tantamount to violation of the recruitment rules. Hence, the answer to question No. (ii) is in affirmative.
(iii) According to the service particulars submitted by both the applicant and 4th respondent and in pursuance to the documentary proof, the applicant was initially appointed in Central Administrative Tribunal, Jabalpur Bench on deputation as U.D.C. w.e.f. 7.12.1988 and he got proforma promotion on the said date w.e.f. 30.4.1990. According to the 4th respondent, he became Librarian as on 13.11.1989 in the office of District & Sessions Judge, Damoh and he became U.D.C. w.e.f. 01.12.1989 on deputation basis. If the service particulars of both the applicant as well as respondent No. 4 are considered according to the recruitment rules, one must have rendered five years of regular service in the grade of Rs 1200-2040. The 3rd respondent did not make reference to the Principal Bench, to treat the post of Junior Librarian-cum-Forms Clerk in the grade of Rs. 1200-2040/- held by the 4th respondent was analogous post to that of U.D.C. Admittedly both the applicants and the 4th respondent are not eligible to be considered by the D.P.C. for the post of Assistant. Hence the selection of the 4lh respondent is illegal on the ground that the Member of the DPC proceedings was not nominated by the Chairman and also the post of Junior Librarian held by 4th respondent was not an analogous post to that of Upper Division Clerk. Moreover, when the Member is not nominated by the Chairman, he is not the Member of the D.P.C. in the eye of law. Hence, the answer to Question No. (iii) is also affirmative.
(iv) In view of the findings to question Nos. 1 to 3 above, the answer to question No. (iv) is affirmative.
(v) The applicant is working in the Central Administrative Tribunal as UDC on deputation. The parent department of the applicant was the office of District & Sessions Judge, Jabalpur. He came to the C.A.T. on deputation basis as L.D.C. on 6.1.1987. Subsequently, he was appointed on ad hoc basis as U.D.C. w.e.f. 7.12.1988. He got proforma promotion in the parent department w.e.f. 30.04.1990 on the post of U.D.C. The parent department of the 4th respondent is District & Sessions Judge, Damoh. He was initially appointed as Jr. Librarian-cum-Forms Clerk w.e.f. 28.2.1979. He was appointed in C.A.T. as U.D.C. w.e.f. 1.12.1989 and he was posted as Jr. Librarian against the post of UDC w.e.f. 19.1.1990. Subsequently he became Jr. Librarian w.e.f. 20.03.1990. When both the applicant and the 4th respondent have come on deputation and the case of the 4th respondent has been considered by the D.P.C, the said proceedings have been challenged by the applicant that his case can be considered according to the recruitment rules. Since he is qualified and service of the applicant is also at par with that of the 4th respondent. In this respect, the applicant has cited the judgment of the Hon'ble Supreme Court rendered in the matter of Lakhi Ram v. State of Haryana and Ors., (1981) 2 SCC 674=1981(2) SLJ 408 (SC). The facts of the said case are that Lakhi Ram had filed writ petition challenging the orders of the Government expunging the adverse remarks made in the annual confidential report of respondent No. 6. The High Court took the view that the appellant was not entitled to complain against the expunction of adverse remarks made in the confidential report of another officer. But this view, in our opinion, erroneous because the effect of expunction of adverse remarks in the confidential report of respondent No. 6 is to prejudice the chances of promotion of the appellant and if the appellant is able to show that the expunction of the remarks was illegal and invalid, the adverse remarks would continue to remain in the confidential report of respondent No. 6 and that would improve the chances of promotion of the appellant vis-a-vis respondent No. 6. The appellant was, therefore, clearly entitled to show that the Government acted beyond the scope of its power in expunging the adverse remarks in the confidential report of respondent No. 6 and that expunction of the adverse remarks should be cancelled. The appellant, had in the circumstances locus standi to maintain the writ petition and the High Court was in error in rejecting it on the ground that appellant was not entitled to maintain the writ petition. The appeal was allowed setting aside the order of the High Court and remanding back the writ petition to the High Court for disposal on merits.
The facts of the said case and the facts of the case in hand are similar and is applicable to the present case.
Learned Counsel for the applicant has also relied another judgment of the Hon'ble Supreme Court rendered in the matter of Prem Singh and Ors. v. Haryana State Electricity Board and Ors., (1996) 4 SCC 319. Regarding locus standi, the facts of the said case are that the appellants (candidates selected and appointed) submitted that the High Court should not have quashed the selection and set aside the appointments at the instance of the original writ petitioners as in any case they were not selected by the Selection Committee. They also questioned the locus standi of the writ petitioners as all of them except one had taken part in the process of selection without any objection. They also pointed out that the said one writ petitioner was not even eligible to be considered for the post on the last date for receiving applications. Rejecting this contention the Hon'ble Supreme Court held that there is no substance in the objection raised with respect to the locus standi of the original writ petitioners. The candidates could not have anticipated when they appeared for the interview that the Selection Committee would recommend candidates and the Board would make appointments far in excess of the advertised posts. The petitioner who was not eligible had a just grievance that due to appointments of candidates in excess of the posts advertised he was deprived of the right of consideration for appointment against the posts which would have become vacant after he acquired eligibility. The Hon'ble Supreme Court has held that though the applicant had submitted the application after the last date of receiving the applications, he could challenge that process of selection. Accordingly, he had locus standi the selection process.
In the present case service particulars of the applicant are also at par with the 4th respondent. Hence it is considered that the applicant has locus standi to challenge the selection of 4th respondent. Accordingly, the answer to question No. (v) is in affirmative.
(vi) Both the applicant and respondent No. 4 have explained regarding delay in approaching this Tribunal challenging the impugned order. The selection process has been conducted on 30.7.1993 and the impugned order of selection of 4th respondent as Assistant was passed on 6.8.1993. Subsequently, the applicant had submitted his representations, for which the official respondents have given reply. The applicant has received impugned order dated 19.11.1998 (Annexure A-1). After receipt of the said reply, he has filed the O. A. on 19.8.1999 hence the application is well within the lime of limitation.
Respondents have taken the ground that there is an inordinate delay of six years in filing the present O. A. They have calculated the period of limitation from the date of the DPC proceedings i.e. 30.7.1993. Since the applicant has not filed M.A. for condonation of delay explaining the delay, the O.A. is not maintainable and is liable to be dismissed.
We have considered the issue regarding delay. The applicant came to know about the impugned order of selection of 4th respondent as Assistant as per (A/13) dated 6.8.1993. Subsequently, he has filed his representation dated 28.9.1995 before the Hon'ble Chairman Principal Bench, New Delhi. After receipt of the orders from the Hon'ble Chairman, he has submitted one more representation and received the reply on 28.2.1997. Once again he has submitted an appeal before the Hon'ble Chairman on 14.7.1997. Since he could not receive any reply, he had submitted one more appeal on 8.1.1998. Ultimately, he received the impugned order dated 19.08.1998 (A/1). The applicant was pursuing his legitimate legal rights before the authorities. The applicant had not slept over the matter. Hence we consider that there is no delay in filing the O.A. as the cause of action for filing the O.A. arose to the applicant on 19.8.1998.
The 4th respondent has submitted the citation regarding maintainability of the O.A. on the ground of time barred claim, of the Hon'ble Supreme Court in the matter of Ramesh Chand Sharma (supra). The said judgment relates to the limitation under Section 21 of the Administrative Tribunal Act. The facts of the said case arc that the O.A. was filed after expiry of three years challenging the order of promotion of Ramesh Chand Sharma issued by the Government of Himachal Pradesh on 22.4.1991. First respondent Udham Singh was working in the Air Force and after his retirement from the said service, he came to be appointed as Translator-cum-Legal Assistant in October, 1989 and joined on 5.10.1989. The DPC was held on 16.2.1991, on a perusal of the service record of Ramesh Chand Sharma and Udham Singh Kamal found that latter did not fulfil the condition of three years' experience in the feeder cadre and, therefore, vide its letter dated 22.4.1991 selected and recommended Ramesh Chand Sharma for being appointed as Assistant Legal Draftsman (Hindi) Class II (Gazetted).
The original application was filed on 2.6.1994 and the ground taken by the respondent in the said O.A. was that the application had been filed, beyond the prescribed period of limitation. The Tribunal allowed the O.A. The respondents in the said O.A. challenged the said order before the Hon'ble Supreme Court and the Hon'ble Supreme Court allowed the appeal on the ground of limitation and dismissed/set aside the orders of the Tribunal.
In the present O.A., the applicant has challenged the impugned order of selection only after he was issued the impugned order dated 19.08. 1999 and the O.A. was filed on 19.08.1999. After considering the facts of the present case, we find that the application is well within the period of limitation and the judgment cited by the 4th respondent is not applicable to the present case. Hence, the answer to question No. (vi) is in negative.
(vii) The D.P.C. proceeding was headed by the Vice-Chairman, Member and the Registrar. The action taken by the DPC/Selection Committee was an administrative matter and the said decision can be challenged before the Central Administrative Tribunal. In the present case the DPC proceedings were headed by the Ex-Vice Chairman and Member (A), who are not functioning in this Tribunal. Even otherwise, the administrative matters can be challenged before the same Tribunal. Though the Vice Chairman takes decision on the administrative side, the decision taken on administrative side can be challenged on judicial side, hence this Tribunal has jurisdiction to decide the validity of the administrative orders and also the disciplinary proceedings. Hence, the answer to question No. (vii) is in affirmative.
7. After perusal of the D.P.C./Selection Committee proceedings, the ingredients of the recruitment rules and also the guidelines dated 14.11.1990 issued by the Principal Bench of Central Administrative Tribunal and the service particulars of the applicant and the 4th respondents, we are of the considered view that the selection process while conducting the D.P.C. on 30.07.1993 was bad in law. Admittedly, there was no nomination of the Member of D.P.C. from the side of the Hon'ble Chairman and more so the post of respondent No. 4 i.e. Junior Librarian was not treated as an analogous post, to that effect there is no reference in the D.P.C. proceedings.
8. In view of the opinion, referred to above in pursuance to the above questions, we are constrained to allow the application by quashing the D.P.C. proceedings/Selection Committee proceedings held on 30.7.1993 promoting the 4th respondent as Assistant. Consequently, the appointment order issued in favour of the 4th respondent dated 6.8.1993 is hereby quashed. The second respondent is directed to conduct fresh D.P.C./Selection process in accordance with the recruitment rules and also the guidelines dated 14.11.1990 for selection to the post of Assistant.
9. Original Application No. 660/1999 is allowed. No Costs.