Central Administrative Tribunal - Delhi
Arvind Kumar Minhas vs M/O Defence on 14 February, 2023
Item 54/C-III OA 2482/2021
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 2482/2021
This the 14th Day of February, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Arvind Kumar Minhas
Aged 55 Years
S/o Sh. Avtar Singh
R/o H. No. 1164, M.S
Timarpur, Delhi-110054
...... Applicant
(By Advocate: Mr Koonal Tomar)
Versus
1. Union of India
Ministry of Defence
Through its Secretary
South Block
Rajpath, E Block, Central Secretariat
New Delhi-110001
2. Secretary, Dept. of Defence R&D
And the Chairman
Defence R&D Organization (DRDO)
Ministry of Defence, Govt of India,
DRDO Bhawan, Rajaji Marg, New Delhi-11
3. The Director
Institute of Nuclear Medicine & Allied Sciences
(INHAS), Defence R&D Organization,
Brig S. K. Mazumdar Road, Delhi-110054
4. The Director
Central for Personnel Talent Management (CEPTAM)
Ministry of Defence, Metcalfe House
New Delhi-110054
5. Sh. Kamal Singh
Technician-C
(INMAS), Defence R&D Organization,
Brig S. K. Mazumdar Road, Delhi-110054
.......Respondents
(By Advocate: Mr R K Jain)
Item 54/C-III OA 2482/2021
ORDER (Oral)
Hon'ble Mr. Ashish Kalia, Member (J):
By filing the present OA, the applicant has prayed for following reliefs:-
"1. To quash/set aside the order dated 13.07.2021 passed by the Joint Director, INMAS
2. To fix the notional seniority of the applicant in the post of Technician 'A' as per date and merit list of selection panel for the year 2010 for theprupose of further promotion/upgradation under flexible complementing system applicable to the cadre; and
3. To promote/upgrade the applicant to the grade of Technician 'B' w.e.f. 01.09.2015 and Technician 'C' w.e.f 01.09.2020 with all consequential financial benefits on part with applicant's batch mates of 2010 notification who joined the post in the organization, by relaxing condition of physical service, where required, and
4. The applicant be paid full pay and allowances for the post/grade of Technician 'A' w.e.f 01.06.2020 and for the post of Technician 'B' w.e.f 01.09.2015 and for the post of Technician 'C' w.e.f. 01.09.2020 as delay in appointment was not due to the applicant, and/or
5. Any other orders as deemed fit & appropriate by this Hon'ble Tribunal in the given facts and circumstances."
2. The brief facts of the case are the applicant was working with the respondents as Technician 'A' Honorary Naib Subedar w.e.f. 30.11.1984. During his tenure, he acquired equivalent qualification to post of Technician 'A' of Diploma Course in Medical Laboratory Technology (DMLT) in 2006-2007. The applicant was retired on 01.12.2008 as Hononary Naik 2 Item 54/C-III OA 2482/2021 Subedar from Armed Forced Medical Services. Thereafter, in 2009, he joined in Institute of Nuclear Medicine & Allied Sciences (INMAS), Defence R&D Organisation (DRDO) as Nursing Assistant. In November, 2009, CEPTAM-03 invited application for the post of Technician-A. The applicant on being eligible, applied in the same and he was allowed to appear the written test on 07.02.2010. He cleared that exam but the certificate issued by the authority concern was questioned by the respondents and they did not called him for interview test. Aggrieved by the same, the applicant approached this Tribunal by filing an OA No. 2351/2013 which was allowed with the following observation:-
"7. In view of the above mentioned communication and certificate, there should be no doubt that the applicant fulfilled the requisite qualification for the post in question. The OA is, accordingly, disposed of with a direction to the respondents to process the candidature the applicant for the post of Technician 'A' in accordance with prescribed rules and procedure as expeditiously as possible and preferably within a period of three months from the date of receipt of a copy of this order. No costs."
3. The Department challenged the same by filing a Writ Petition No. 9707/2016 before the Hon'ble High Court of Delhi. The Hon'ble High Court dismissed this Writ Petition by observing following points:- 3 Item 54/C-III OA 2482/2021
"5. Learned counsel for the petitioner accepts and admits that IPH & H, Mahipalpur has been sponsored by Indian Army for conducting the said diploma course for Army men so that they can secure re-employment post retirement.
6. We are surprised on the stand of the petitioners - Union of India, Ministry of Defence and the Directorate General Medical Services who assert and profess that the diploma course should not be treated as equivalent qualification and the respondent is disqualified and not eligible for appointment on the said ground. The assertion is clearly contrary to the said letters/certificated.
7. The petitioners submit that the aforesaid letter and certificate are merely internal communications. This is not correct. Internal communications are notings made on the files. They remain internal notings until they are communicated to the person concerned for whom they are meant. In the present case, the letter and certificate quoted above are communications addressed by the DRDO to the Director CEPTAM who had issued the advertisement. The certificate issued by the Director General of Medical Services (Army) is to the same effect. The certificate is not an internal noting. These communications are clear and leave no room for doubt or ambiguity that the aforesaid diploma course, which was for duration of 9 months, can be treated as requisite qualification.
8. In these circumstances, the decision of the Supreme Court in Union of India and another v Kartick Chandra Mondal and another, (2010) 2 SCC 422 would not be applicable Obviously, the aforesaid letter and certificate, without any doubt and ambiguity, were issued with the objective that army men who had undertaken the said course and seek post-
retirement employment are not harassed and would be eligible for appointment. Ironically, the appointment in the present case is sought in an organisation of the Ministry of Defence. 4 Item 54/C-III OA 2482/2021
9. In view of aforesaid, we find no merits in the petition and the same is accordingly dismissed.
10. Pending CM is also disposed of."
4. Now the applicant has again approached this Tribunal by way of filing this OA, by which, he sought seniority from the date when his batch mate joined the post as Technician-A way back in 2010 when he was eligible but not allowed to join the said post for want of clarification in regard to Diploma course obtained from the Ministry of Defence.
5. Notices were issued on 10.11.2021. Mr R K Jain put appearance on behalf of the respondents and raises preliminary objections through his counter reply vide Para 1 at Page 3. The same read as under:-
"1. That the contents of this para, as stated, are wrong and hence denied. The order dated 13/7/2021 has been passed after considering the order passed by Hon'ble Tribunal and other rules applicable on subject matter. As the applicant had failed in claiming seniority in his previous petition viz. OA No. 2351/2013 decided on 11.05.2015, where the Hon'ble High Court has not directed to grant seniority on notional basis. Further, the claim of the applicant can't be entertained on the ground that he was not in service at the relevant time and that the seniority which is already settled can't be disturbed now, as held by the Hon'ble Supreme Court in the case of The State of Bihar Vs. Arbind Jee, Civil Appeal No. 3767 of 2010, decided on 28th September, 2021. In this judgment, the Hon'ble Supreme Court had declared that "Even in the High Court order, there was no mention or consideration of retrospective benefits as claimed by the respondents, it is also necessary to note that retrospective seniority, unless directed by 5 Item 54/C-III OA 2482/2021 court or expressly provided by the applicable rules, should not be allowed, as others who had earlier entered service, will be affected".
On the basis of the judgment of State of Bihar Vs. Arbind, the applicant is not entitled for the seniority as the Hon'ble Tribunal had not granted the claim of retrospective seniority and also the relevant rules do not provide for the same."
6. In a nutshell, the respondents say that the person, who does not born in the cadre, shall not be given benefits of the service by relying upon a judgment of the Hon'ble Supreme Court in the matter of K. Meghachandra Singh vs. Ningam Siro in Civil Appeal No. 8833-8835 of 2019 decided on 19 November, 2019. Further, he submitted the applicant has not raised this issue in the earlier OA, only eligibility has been sought and the Hon'ble High Court also affirmed the same.
7. Heard the counsels for the parties.
8. A short issued raised before this Tribunal is that once the applicant is eligible for the post and qualified in the written test, whether he is entitled to join the post on the date or not?
9. In support of his claim, the applicant has submitted that similar issue has been raised before the Hon'ble Apex Court in the matter of C. Jayachandran Vs. State of Kerala & Ors. Etc. in Civil Appeal Nos. 1993-1995 of 2020 arising out of SLP (Civil) Nos. 22949-22951 of 2019) decided on 04.03.2020 where the Hon'ble Apex Court has allowed the petition with following observations:-
6 Item 54/C-III OA 2482/2021
"44. The argument that grant of selection grade to respondent Nos. 11 and 12 was earlier in point of time than the appellant will not confer any better, legal or equitable right. There was specific condition in the letter of appointment by transfer of respondent Nos. 9-10 that their appointment is without prejudice to the recruitment of direct recruits. Since the rights of the direct recruits were specifically mentioned, such respondents cannot claim any protection of their transfer in the cadre only for the reason that they were granted selection cadre earlier. The finding recorded by the High Court administratively and by the learned Single Judge is that the appointment of such candidates was beyond their quota meant for appointment by transfer. Therefore, they cannot claim any legal or equitable right. Similarly, respondent Nos. 11-12 were appointed by transfer to the cadre subject to the condition of rights of the candidates in the writ petitions pending at that time. The said writ petitions were decided in the light of the order passed in the earlier writ petition filed by the appellant on 13.09.2010. The rights of the appellant to claim notional seniority thus cannot be said to be unjust which was wrongly interfered with by the Division Bench in an intra-Court appeal.
45. Consequently, the appeals are allowed and the order passed by the Division Bench is set aside and the writ petitions are ordered to be dismissed with no order as to costs."
He also relied upon the judgment of State of Bihar & Ors. Vs. Arbind Jee in Civil Appeal No. 3767/2010 passed by the Hon'ble Apex Court dated 28.09.2021. The operative of the said judgment read as under:-
"14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondent's seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category.7 Item 54/C-III OA 2482/2021
15. Supported by our above discussion, we are of the considered opinion that the High Court was in error in granting retrospective seniority to the respondent. The appeal is accordingly allowed and the impugned orders passed by the High Court are set aside and quashed. With this order the case is disposed of leaving the parties to bear their own cost."
10. In similar circumstances, if the applicant, who is eligible for the promotion to the next level Technician B, deprived by the respondents then he is entitled for notional seniority from the date of his juniors were given the promotion.
11. On the other hand, learned counsel for the respondents objects the contention as the applicant has not raised this issue earlier and has no legs to stand because the applicant from the day one is claiming that he is eligible as per Diploma Certificate issued from Ministry concern. This has been realized of late by the applicant when they have given actual appointment from way back some time in 2017. By the time, his batch mates, who were appointed in 2008, got further promotion in Technician Grade B & C. Though, because of misreading of the Rules, the respondents have deprived the applicant's legitimate right. The applicant retired from Military service. It is irony of our system that a person who is defending the Country in the War Zone has been entangled with litigation by these Govt. officials 8 Item 54/C-III OA 2482/2021 which is not appreciated by this Tribunal and hence, deprecated.
12. In view of aforesaid, we hereby allowing this OA with direction to the respondents to give him notional seniority with consequential benefits without any monetary benefits w.e.f the date his batch mates of 2010 have joined the services and similar benefits have to be fixed at par with his batch mates.
Accordingly, the present OA is disposed of. No order as to costs.
(Dr. Anand S. Khati) (Ashish Kalia)
Member (A) Member (J)
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