Central Administrative Tribunal - Ernakulam
Dated This The 30Th Day Of September vs Union Of India on 30 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 787/2010
Dated this the 30th day of September, 2011
C O R A M
HON'BLE DR K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE MRS K.NOORJEHAN, ADMINISTRATIVE MEMBER
1 V.Sreekumar, Head Clerk, Regional Transport
Office, Kasargod, R/o TC 15/562(1), Padmanabham,
Edapazhinji, Sasthamangalam P.O, Trivandrum.
2 Suku.A, Lower Division Clrk, Govt Vocational Higher
Secondary School, Puthoor, Trichur, R/o Mini Bhavan,
Koppam, Vithura P.O, Trivandrum.
3 Suresh T.T, Upper Division Clerk, Deptt.of Panchayath
Performance Audit, Unit II, Panthalam, Pathanamthitta
R/o Shruthilayam, Manchavilakom P.O, Dhanuvachapuram
Via Neyyattinkara, Trivandrum.
4 Baburaj N, Junior Accountant, O/o Controller of
Communications Accounts, Deptt of Telecommunication
Kerala Circle, Trivandrum.
5 Baby G, Sr.Accountant, O/o Principal Controller of
Communications Accounts, Deptt of Telecommunications
Tamilnadu Circle, Chennai.
6 Shafi S, Lower Division Clerk, O/o Controller of
Communications Accounts, Kerala Circle, Trivandrum.
7 Sunitha Kumari, UDC, District Treasury Moolamattom,
Idukki, R/i Sreelakshmi TC 21/1916/5, Panayil Road
Karamana P>O, Trivandrum.
Applicants
By Advocate Mr. T.C.Govindaswamy.
Vs
1 Union of India, represented by Secretary, Ministry
of Communications & IT, Deptt of Telecommunications
Sanchar Bhavan, 20 Ashoka Road, New Delhi - 110001.
2 Under Secretary(SEA), Deptt of Telecommunications
716, Sanchar Bhavan, Ashoka Road, New Delhi - 110001.
3 Controller of Communication Accounts, O/o the Controller
of Communication Accounts, Kerala Circle, Trivandrum..
4 Deputy Controller of Communication Accounts (Admn),
O/o the Controller of Communication Accounts,
Kerala Circle, Trivandrum..
By Advocate Mr. Sunil Jacob Jose, SCGSC
The Application having been heard on 22.9.2011 the Tribunal delivered the
following:
O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicants are aggrieved by the rejection of their application for absorption in the respondent's department.
2 Brief facts of the case as stated by the applicants are that all the applicants here in are the employees working in the category of Class III (equivalent to Group-C) in various departments of State of Kerala. It is averred by the applicants that while they working as such under the State Government, in the year 2004, the respondents have invited applications from the employees holding analogous posts in the State Govt to work on deputation basis in the office of the 3rd respondent. All of them were selected and they worked in the Department of Telecommunications on deputation basis from various dates in different posts. A few of them have been repatriated to their parent department and others are continuing on deputation. It is further averred that since the Govt of Kerala does not maintain ACR for those below the grade of Junior Superintendent, the applicants have produced conduct and vigilance certificates from their respective department to the effect that no disciplinary proceedings are either pending or contemplated against them and no confidential report is written for their posts. On the strength of work, conduct and vigilance certificates the 3rd respondent allowed them to work on deputation. To meet the staff shortage the 1st respondent constituted a committee to come up with report. The Committee recommended for permanent absorption of staff in Group C as one time measure and fixed eligibility criteria. In the year 2009 applications were invited from the officials holding analogous posts in various Ministries/Department of the Central and State Governments for permanent absorption. Pursuant to this, all the applicants submitted their applications for their permanent absorption alongwith no objection certificate and vigilance clearance certificate issued by their respective department. It is further mentioned that in State Government up to the post of UD Clerks no confidential report is written. Another letter dated 16.8.2010 was issued by the 2nd respondent clarifying that only after absorption of deputationists, other applications submitted by the employees of Central and State Government shall be considered. It is alleged that the respondents conducted the selection process in a mysterious manner without any transparency and rejected the request of the applicants and persons without any previous experience were absorbed. They further added that the respondents were well aware that there is no ACR in State of Kerala and without insisting on it they were allowed to work on deputation and when their turn came for absorption their applications have been illegally rejected.
3 The respondents contested the OA by filing their reply. In the reply it is contended that the deputationists will get preference for selection subject to availability of vacancy once they fulfill the basic criteria of gradings of ACRs for the last 5 years, i.e. From April 2005 to August 2009 with minimum bench mark of 'Good' in each year. A person with a grading of 'Average' or adverse entries will not be eligible for absorption. Similarly, a person who does not have ACRs for all the five years cannot claim preference. They have disputed the contention of the applicant that merely because ACRs were not insisted upon for selecting these applicants for initial deputation for specific periods of up to five years any deviation from the eligibility conditions fixed by the Committee can be made for the present selection for appointment on permanent absorption. Selection at the time of deputation was done according to the need and exigencies of service at that point of time. They admitted that deputationists have to be given precedence for permanent absorption but without compromising the basic criteria for selection. Reservation is not applicable in the case of appointment on permanent absorption, but the interest of SC/ST/OBC candidates will be taken care of if there are eligible candidates from the said categories. They further contended that permanent absorption in an office where they had worked on deputation for some time cannot be claimed as a matter of right but the same is decided based on the terms and conditions prescribed by the concerned department. It is also submitted that the Committee appointed by the respondents prescribed the basic conditions for selection as the ACR grading for the last 5 years from 2004-05 to 2008-09 with minimum benchmark for each year. This condition was not relaxed in respect of any categories of applicants. As per Appendix-I to letter dated 24.8.2010, CCAs were supposed to prepare selection panel (rank-wise) and issue appointment letter as per vacancy position. Thus no deviation has taken place from laid down guidelines/policy. Having served in the CCA offices is not the sole criterion to be applied for eligibility but the applicants should have to be fulfilled the documentary requirements too. The discrepancies found in the application of the applicants are as under:
In the case of V.Sreekumar, application was not countersigned by the Head of Department/office. No ACR for 2004-05. Applicant A.Suku - No ACRs from 2004-05 to 2006-07. Applicant TT Suresh - Application was forwarded by Additional Director of Panchayat with a condition. No ACR for 2004-05. Applicant N.Baburaj - No ACR for 2004-05 Applicant G.Baby - No ACR for 1/2007 to 3/2009.
Applicant Shafi - No ACRs Applicant Smt Sunithakumari - No ACRs prior to 24.4.2007. They further contended that the selection process for permanent absorption was conducted in a transparent and fair manner leaving no room for any mystery.
4 The applicants filed rejoinder reiterating the averments in the O.A and further submitted that there was no stipulation laid down in Annx.A5 for the deputationists who worked between 17.12.2008 to 15.2.2010 to produce ACRs for the last five years. They further quoted the instance of one Shri Raju C.Menon from the State of Arunachal Pradesh and another one Geethakumari in whose cases the respondents have made a departure in selection from the prescribed guidelines. In respect of Smt Geetha from Kerala State service, she was absorbed, treating her 3 months service from December 2004 to March 2005 as ACR for one year. 5 Additional reply to the rejoinder was filed. The respondents have reiterated the averments in the reply. They further submitted that in the initial notification dated 12.8.2009 itself it has been clearly stipulated that the ACRs of 5 years are to be annexed alongwith the application. Therefore, according to them 5 years ACRs is one of the prime conditions prescribed for absorption on regular basis. 6 We have heard learned counsel for the parties and perused the records. 7 Annx.A5 is issued by Resp.1, answering the queries of Resp.3 regarding the selection process. Clarification point-1, relates to treatment of deputationists. It is extracted below:
"Where an individual who was on deputation in CCA offices as on 17.12.2008 and beyond upto 15.2.2010, shall be considered in the first instance and after fulfillment of the following conditions:
i availability of vacancies in the grade applied for, ii No objection certificate (NOC) by his/her parent department iii signed declaration from the candidate accepting the terms and conditions of permanent absorption; and iv Recommendation from CCA The concerned officials should have also submitted their application in the prescribed proforma as circulated vide DoT HQ letter No.33-23/2005- SEA-II/Vol.V dated 12.8.2009 as amended vide corrigendum of even Nos dated 18.8.09, 10.9.09 and 16.9.09 or circulars of even No dated 15.01.2010 and 02.02.10.
Only after cases of persons who are serving/have served in the CCA offices on deputation basis have been regulated in the manner as specified above, CCA offices may consider requests/applications received from other candidates.
However, deputationists who have earlier worked in CCA office and have since been repatriated back to their parent department/ministry before 17.12.08 and have applied for permanent absorption in DoT are not covered by the above provision. These candidates are to be treated at par with other candidates."
The 2nd point of Annx.A5 lays down the stages of selection process which is noted below:
"...The competent authority has decided that the recruitment process shall be done in 3 stages, viz;
1st stage: Deputationists to be absorbed as per the clarification above..."
The clarification supra clearly establishes the priority to be accorded for those on deputation as on 17.12.2008 and beyond upto 15.2.2010. All the applicants excepting 6th applicant fulfill these conditions. In the case of deputationists, it is averred by the applicants that there is no condition regarding ACRs. Only recommendation of the CCA, Resp.3 is required. However, regarding point 4 of clarification letter (Annx.A5), relating to non-availability of ACR for certain periods, a reference is invited to para 4.1.1 of the report of the Committee and Annx.R2. The ACRs for last 5 years are required as per Annx.R2.
The respondents have fairly conceded that non-availability of ACRs for 5 years from 2004-05 to 2008-09, was the sole reason, for non consideration of the request of the applicants for their permanent absorption. They have produced Annx.R2 dated 12.8.09, intimating the decision to fill up the posts of LDC, Jr.Accountant and Sr.Accountant by appointment on permanent absorption, as a one time measure. The vacancies were notified in Annx.I and eligibility conditions in Annx.II. The applicants have produced Annx.A2. It shows clearly that applications have been invited from those holding analogous posts in all Departments. Since the original letter was issued on 12.8.2009, the ACRs for the last 5 years upto 2008-09 were called for. Annx.A2 further shows that last date was extended to 15.2.2010, from the earlier date of 30.9.2009. Accordingly, Resp.3 has forwarded the application of the first applicant with attested copies of ACRs for the last 5 years, vide Annx.R-3. So it is undisputed that Resp.1 has called for ACRs for the last five years from 2004-2009. It is an admitted fact that the applicants have been on deputation to the office of Resp.3 from 2005 to 2010. Since ACRs are mandatory for Group-C staff in Central Govt, Therefore, in respect of the applicants ACRs are to be written by the designated authority in the office of Resp.3. ACR for the year 2004-05 may not be available as all of them joined on deputation after March 2005. However, ACRs for five continuous years from 2005-06 to 2009-10 are still available. Annx.A5 is the offer of appointment and it is dated 3.9.2010. Therefore, in respect of the applicants ACRs can as well be taken from the year 2005 to 2010. Since as deputationists, they worked in the office of Resp.3, he is the competent authority to recommend the case of the applicants based on their ACRs, maintained in his office. The absence of ACRs prior to 2004-05 becomes immaterial as these are neither called for nor required. Therefore, we are unable to accept the contention of the respondents that ACRs for the last 5 years are not available. The respondents can get minor omissions like lack of signature of Controlling Officer as in the case of the 1st applicant, non-receipt of NOC from parent office, etc rectified. 8 Regarding the contention of illegal appointment of Raju C.Menon, the respondents in the additional reply statement submitted that he was on deputation in the office of CCA. Chennai from 16.4.2008 and his application was forwarded by CCA, Chennai after getting NOC from Arunachal Pradesh State Govt. Nothing is mentioned about availability of his ACRs from 2004-05. Annx.A6 shows that Smt Geetha Kumari A, LDC (HQ) from the Directorate of Health Service, Govt of Kerala, Trivandrum is absorbed as Junior Accountant. Smt Geetha Kumari, according to the applicants, is deputed from Govt of Kerala and hence could not have earned any ACRs from State Govt. The respondents stated that ACR can be written when the period exceeds 90 days. Hence she has an ACR from Dec.2004 to March 2005. Obviously the ACR from 2004 could have been maintained only in the office of Resp.3. For the years from April 2005 onwards, ACRs could have been written by the designated officer in the office of Resp.3 only as State Govt of Kerala does not keep ACRs for officials below the grade of Junior Superintendent. So we do find force in the contention of the applicants that there is a case of selective discrimination. When ACRs written by Resp.3 are taken into consideration for selection in respect of Smt Geetha Kumari same treatment should have been extended to all, similarly placed applicants.
9 The applicants belonging to the SC community have taken up the ground, that they have not been considered which is violative of Article 16 of the Constitution. Appointment by absorption can be done only against direct recruitment quota, where reservation is mandatory. In this regard clarification point 5 of Annx.A5 is extracted below:
"..... It has been decided that reservation roster as applicable to direct recruitment on all India basis otherwise than by open competition (with share of entitlement for SC 16.66%, ST 7.5% and OBC 24.84%) as given in Annx.IV of the post based rosters has to be followed and the select panel is to be prepared as per the number of posts allocated to each category. ...
... Therefore, it is, suggested that CCA offices may consider applications of all SC/ST/OBC candidates and any subsequent vacancies in reserved quota may be filled up thereafter. "
The applicants belonging to SC/ST community do get an accrued right for their consideration against the reserved points in the special representation roster for the particular grade.
10 A perusal of Annx.A5 shows that Resp.3 is entrusted with the responsibility of drawing up select panel (rank-wise) and issuing appointment letter to the extent of available vacancies. In case the number of eligible applicants for a grade in a CCA office is more than the number of sanctioned posts, the CCA will prepare a list of such candidates and forward to the office of Resp.1 to issue offer of appointment to other CCA offices where vacancies exist.
11 In view of the foregoing, we have no hesitation to declare the eligibility of the applicants who were on deputation from 17.12.2008 onwards and in whose cases Resp.3, has maintained ACRs from 2005 to 2010 for their consideration for appointment by absorption in preference to others. The respondents are, therefore, directed to consider the applications of the applicants giving due weightage for the grading given in the ACRs maintained by Resp.3 for the last five years and intimate their decision to the applicants within a time line of 3 months from the date of receipt of a copy of this order. No costs.
(K.Noorjehan) (Dr.K.B.S.Rajan) Administrative Member Judicial Member. kkj