Central Administrative Tribunal - Bangalore
G C Nayak vs M/O Science And Technology on 9 October, 2018
_ OA No.170/00425 & 426/2016/CAT Bangalore -- - CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH AT BANGALORE ORIGINAL APPLICATION NO.170/00425 & 426/2016 THIS THE 9" DAY OF OCTOBER, 2018 -HON'BLE DR K B SURESH....MEMBER (J) HON'BLE SHRI CV SANKAR ween MEMBER (A) 1. G.C.Nayak & Others S/o Late K.C.Nayak, Aged about 56 years. 2. D.K.Pradhan S/o Late Ballav Pradhan, Aged about 56 years. ... Applicants (By Advocate Smt.C.Deepa) Vs. 1. Union of India, Secretary to the Government of India Ministry of Science and Technology Technology Bhavan, New Mehrauli Road, New Delhi-110 016. 2. Surveyor General of India, . Survey of India, Hathibarkela Estate, Dhra Dun-248001 3. The Secretary, UPSC Dholpur House Shahajahan Road, New Delhi-110 063: 4. Additionai Surveyor General South Zone Office, Survey of India, . _ Koramangala gn Block, | Bangalore - 560 034. ; _. Respondents a ey Advocate Shri VV. N. Holla, Senior Panel Counsel & Shr K. Dilip. Kumar, ACGSC) _ OA No.170/00425 & 426/2016/CAT Bangalore ORDER (ORAL)
-HON'BLE DR K.B.SURESH, MEMBER (J) Heard. This matter and its elements have been discussed succinctly in the order of the Tribunal in OA No.737/2004 dated 4.1.2006 which we quote: _ The applicant has been appointed as Deputy Superintending Surveyor on 13.8.1990 in the respondent department namely Survey of India.on selection by Union Public Service Commission. He was promoted to the next higher grade of Superintending Surveyor (SS' for short) on 16.3.1998 based on the recommendation of Departmental Promotion Committee, though he had become eligible for promotion in August 1994 and there were vacancies against which he could be promoted. Aggrieved over the delay in promotion to the cadre of SS, and also because the respondents had not published any seniority list in the cadre of SS, the only means available for the applicant to see whether any of his juniors had gained seniority over him, the applicant approached this Tribunal vide OA No.44/02 which was - dismissed mainly on the ground of limitation as the delay has not been explained. It was also noted in the said order that the applicant had not shown that any of his juniors had been promoted to the cadre of SS. Aggrieved by this order of the Tribunal he approached. the Hon'ble High Court of Karnataka with WP No.1520/03(S-CAT) and the Hon'ble High Court of Karnataka was pleased to give the following decision: oo _ "If the petitioner has any independent claim relating to fixation of seniority, it is always open for him to seek such relief as may be open to him in law,- in accordance with law." .
In his anguish the approached this Tribunal again in OA .No.173/03 which was dismissed on the ground that it was premature, as the applicant had not made any further representation to the appropriate authority. Thereupon the applicant submitted a detailed representation (Annexure A-4) addressed to the Secretary, Department of Science. and Technology. This was disposed of by the second respondent. which is termed as "Speaking Order in respect of representation dated 21 November, 2003 by Sri.P.V.Rajasekhar, Superintending . Surveyor" (Annexure A-5). The applicant's grievances have not been redressed by this "speaking order'. Hence this OA. . .
2. In the OA the applicant. submits. that as per the recruitment rules promulgated vide-gazet6te notification: dated 26.5.1989 "the vacancies in the cadre of Superintending Surveyors had to be | OA No.170/00425 & 426/2016/CAT Bangalore 3 Civilian Deputy Superintending Surveyors. This quota had been violated being the case that he has all through been putting forth, it was incumbent on the part of the authorities to cause the publication of the necessary seniority list of Superintending Surveyors from time to time, (So that, transgression of the quota one way or the other)(sic). Therefore, the observation made in the impugned order that there was no violation of the recruitment rules and no excess promotion of officers. Surveyors to the cadre of Superintending Surveyors is not tenable The applicant further states that "even the observations, as regards the implementation of the verdict of the Hon'ble Central Administrative Tribunal, Cuttack Bench, in OA No.221/96 and OA No.438/98 is not correct. The finding of the 2" respondent that the applicant was not eligible for promotion in the review DPC for the reason. that he joined the Department as a Deputy Superintending Surveyor on.-13.8.1990 and was eligible to be considered for promotion to the cadre of Superintending Surveyors only after completion of four years viz., after 13.8.1994 is a distortion. While the latter portion of the observation that he became eligible to be promoted on completion of four years of service on 13.8.1994 is correct, the former portion of the observation that he was not eligible to be considered for promotion is a contradiction in terms, and the same is self- . defeating. Further, even with regard to the dates of eligibility, the observation contained in the impugned order is unsustainable". _ The applicant's request for publishing the required seniority list-of SS assigning to him a proper ranking has not been found favour with by the respondents. That being so, the observation made in the impugned order that none of the juniors of the applicant has been promoted as Deputy Director is not tenable. What has been Styled by the second respondent as "the applicant's self- assumed seniority list of SS' was not only unexceptionable but had been not only tenable but was prepared and submitted by him for enabling the 2" respondent to appreciate the grievance ventilated by the applicant and for smoothening the process of assigning proper rankings to the applicant vis a vis the others in the required seniority list'. The repetitive statement contained in the impugned order that the applicant having joined the Department on 13.8.1990 was eligible for promotion to the cadre _ of SS only after 13.8.1994 has served no purpose, in that, while that was the actual position, as would flow from the rules of recruitment then prevailing, fixing a separate quota for promotion from the Civilian. Officers Channel, Civilian . Deputy Superintending. Surveyor and promotee officer Surveyor to the grade of SS was necessary". - Bo .
3... In the OA before this Tribunal, the applicant had sought, the following reliefs: eS Ok as
(i) Declare and set aside as unsustainable, the impugned order bearing No.C1342/PF(PVR) dated 15.3.2004 (Annexure A5) after calling for the entire records relating to OA No.170/00425 & 426/2016/CAT Bangalore ;
concerning and connected with the said order, from the 2 respondent:
(ii) issue a consequential direction to the respondents 1 and 2 to prove and publish a revised year wise seniority list of Superintending Surveyors, strictly according to rotation of vacancies in terms of Rule 9 (1)(iv) of the Survey of India, Group A Service Rules, 1989, etc., _ assigning to the applicant a proper ranking in the said list:
and
(iii) Pass such other order as this Hon'ble Tribunal may deem fit, in the facts and circumstances of the case, including the award of the costs of this application, in the interest of justice and equity.
5. in the reply, the respondents have averred that the applicant's request for fixation of seniority in the cadre of SS in accordance with Rule 9 (A)(iv) of the Survey of India(Group A) Service Rules 1989 cannot be granted as rule 9 of the Survey of India Rules 1989 has been deleted vide DST's dated 19.12.1997 (Annexure
-- R-1). Review DPC was convened on 26.06.2001 on revised seniority list of (office)(sic) surveyors (upholding of the order dated 4.5.1998 of Hon'ble Cuttack Bench of the Tribunal and Bhagirathi Mahapatra were promoted to the post of SS by -- creating supernumerary posts to be adjusted against future vacancies and subsequently these were regularized against the vacancies for the year 1994 meant for officer Surveyor's quota. The applicant was promoted from Deputy SS to SS w.ef 16.3.1998 against the vacancy for the year 1994 meant for Deputy SS quota. Therefore, the officer Surveyors promoted to the post of SS against supernumerary posts for the year 1992- 1993 are senior to the applicant. Then order of seniority in the grade of SS was issued on 9.8.2001. The applicant has not been -
_ superceded by any junior officer on promotion to the next highest post. Regarding the transgression of quota earmarked for Deputy SS, the respondents have. stated that the applicant was promoted from Deputy SS to SS. with effect from 16.3.1998 against the quota meant for Deputy SS for the vacancy for the year 1994. The respondents also state that the applicant has not been superceded by any junior officer. Therefore, the question of review DPC does not arise." Four years completion of service in the grade of Deputy Superintending supervisor is only eligibility for processing. the case for promotion to the post of Superintending Surveyor and this eligibility date is not the date of officer's promotion as per rule. Not only this eligibility is sufficient for processing the DPC but before processing the DPC papers all other formalities are required to be kept in view. Promotions are only. prospective as per para 6.4.4. of DOPT's. OM. dated
10. 4. 1989. as amended from time to time, reproduced below:
OA No.170/00425 & 426/2016/CAT Bangalore
5.
"While. promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect in cases where the vacancies relate to - earlier year(s)." oe -
Regarding the publication of Seniority List, the respondents state that seniority list of SS was circulated vide SG's letter dated 6.7.1999 and the order of seniority in the grade of SS_ promoted (in the DPC held on 9.10.1995 and reviewed for the year 1992 and 1993) has been circulated vide SG's dated 9.8.2001 (Annexure R-3). Accordingly none of the Junior officers to the _ applicant has been promoted to the post of Deputy Director . before the applicant. .
5. In the rejoinder filed by him, the applicant has stated that _ the "review DPC was convened on 26.6.2001 to revise seniority list of (office)(sic) surveyors upholding the order dated 4.5.1998 - of the Cuttack Bench of CAT and Bhagirathi Mahapata (were)(sic) promoted to the post of SS - by creating supernumerary post to be adjusted against the future vacancies and subsequently these promotions were regularized against the vacancy for the year 1994 meant for officer surveyor's quota. The issue is not about the Cuttack Bench order or its implementation.
CAT, Cuttack order assigns seniority to. officer Surveyors from two group C. streams, namely -- promote surveyors -- and SurveyoOrs through limited -- departmental competitive examination. The dispute is about the vacancy year against which Sri.Bhagirathi Mahapatra and others are promoted. The applicant was promoted on 16.3.1998 from DSS to SS against the clear vacancy for the year 1994 and is. senior to Sri,Bhagirathi Mahapatra and others who are promoted in the- year 2001 and adjusted against the vacancy of 1994, as claimed by the respondent. This will become clear once year wise seniority list is prepared for the year 1990 to 1994. Therefore, the seniority of the applicant in the cadre of SS has to revised and a proper ranking in the seniority list has to be assigned to the applicant. the contention of the respondents that the seniority list __.of SS was prepared each year i.e., on 1% January for the purpose | of promotion through DPC and the same is distributed to all the Directorates of Survey of India for their information is false. The . vacancy for the year 1992-93 against which Sri.Bhagirathi Mahapatra has been promoted is in dispute. The order against Which he has been promoted is in dispute. The order against which he has been promoted could be clear only if seniority lists of 1990, 1991, 1992, 1993 and 1994 are published. The _ respondents have not published any seniority list for the his legitimate claim for fixation of seniority. The applicant is _ aforementioned years. so far. Hence the contention of the - respondents that they have published seniority list year wise i.e, totally false statement before this Tribunal to deny the applicant -
- senior to Sri Bhagirathi Mahapatra who was promoted inthe year 2001 and adjusted against the year 1994. Hence the seniority of OA No.170/00425 & 426/2016/CAT Bangalore the applicant over Sri Bhagirathi Mahapatra is promoted will be made known to everyone, if the seniority list for the year 1990 to 1994 is published. DSTs letter No.SM/01/026/96 dated 10:2.1987 is only an executive order suggesting deletion of Rule 9 of Survey of India (Group A) Service Rules, 1989 and at the same time the letter clearly states that the inter-se-seniority in the grade of SS in the civil stream may be regulated in the ratio of 50:50 by promotes from DSS(JTS) grade and from the grade of. OS etc.
6. We have perused the pleadings and heard the learned counsels from both sides.
7. The root cause of grievances of the applicant as enunciated in this OA is the order at Annexure A-5 which is in reply to a detailed representation made by the applicant as at Annexure A-4. As the impugned order is titled a "speaking order' we subjected this document to a detailed examination. Lest it should be alleged otherwise it has the title 'speaking order'. Merely putting a table on it will not make an iron rod a gold bar. So is the case with the impugned order here. A speaking order should discuss at length the points raised: in the representation and logically conclude why the demands raised in the representation cannot be granted. A mere Statement that the representation is devoid of merits or an assertion that the authority's direction is correct is nothing but a repetition of the old adage 'king can do no wrong'. The golden principle of 'equality before law' evolved over ages and is the backbone of a true democracy makes it necessary for the "king" to support his decision by sound reasoning. A 20 page representation detailing the stages at which the administration has gone wrong in granting the claims of the petitioner has been disposed of in a 5 page order of which two pages are devoted for preface and another two pages for statement of facts which are not directly relevant to the applicant's representation. This observation of ours does not imply that the final order on a representation should have equal number of pages as or more number than the representation has, But the contentions raised have to be discussed, instead of simply waiving them off with remarks like "self assumed seniority list etc. The impugned order is neither a reasoned order nor a speaking one as the following discussions will show. We. shall discuss. how each of the issue raised by the applicant in Annexure A-4 has been disposed of by the an respondent in . Annexure Ad.
8. The grievances of the applicant is four fold:
(a) that there is inordinate delay in promoting the eligible Deputy SS to SS, inspite of having suificient vacancies in their . quota.
OA No.170/00425 & 426/2016/CAT Bangalore ed fe
--(b) that there are excess promotions of Officer Surveyors to | SS over and above the quota reserved for them, in violation of the recruitment rule: - : ; |
(c) the non-adherence of Roster of vacancies, as provided in the recruitment rule, in fixing the relative seniority between the OS and DSS promoted to the grade of SS; and
(d) the adverse effect of the above on the career of the applicant.
9. Listed below are the important. submissions the applicant made in Annexure A-4 and the corresponding reply by the respondents as in Annexure A-5 the impugned document.
Applicant's submission:
(a) Regarding seniority in the grade of SS vis a vis promotes from officers surveyors. In 2001, the seniority list of Group B cadre was corrected as per the Roster of Vacancy based on the orders of the Cuttack Bench of this Tribunal in OA No.221/96 and OA No.438/98. But the relative seniority of SS continued to be maintained as per the date of promotion. This selective implementation of rota quota system in the feeder cadre (OS) and its non-implementation of the feeded cadre (SS) has resulted in undue advantage to a few officer surveyors and has put the applicant and other DSS to that much disadvantage.
The relative seniority between the OS and DSS promoted to Superintending Surveyors has to be fixed as per the Rule 9(A)(iv) of Survey of India (Group A) Service Rule 1989 which. states relative seniority of Deputy Superintending Surveyor and Officer Surveyor in civilian stream shall be determined according to the roster of vacancies. This first vacancy will go the Deputy ' Superintending Surveyor and next vacancy will go to the Deputy Superintending Surveyor and next vacancy to the promote officer from the grade of Officer Surveyor and so on"
(b) Regarding date of eligibility for promotion to_SS:-
Attention was invited to para 3.1.2 of Government. of India, . DPA&T OM. No.AB-14017/12/87-Estt(RR) dated 18.3.1988 jin which. all Ministries and departments have been requested to . insert a note in the recruitment rules to the effect that, "when _ juniors who have completed the eligibility period are considered for promotion, their seniors would also be considered irrespective of whether they have completed the requisite service, provided -- _ they have completed the probation period. In order to ensure that seniors who. might have joined later due to various reasons are not overlooked for promotion, necessary action for amendment of recruitment rule may please be taken up urgently wherever this has not been done by now." Shri.Sudarshan Singh who was- zs selected along with the applicant by UPSC is junior to the OA No.170/00425 & 426/2016/CAT Bangalore applicant. He joined as DSS on 29.12.1993. Accordingly the applicant also became eligible on the same date.
We quote from para 21 of the representation (Annexure A-4) "With regards the crucial date for consideration of officials for promotion by DPS, your kind attention is invited to Government of India, Department of Per. & Training, OM No.22011/7/86-Estt.(D) dated 19.7.1989 which states "the matter has been under consideration. In this Department and it has now . been decided that, while holding DPCs during a year, the crucial date for determining the eligibility of officers for promotion would be prescribed as under:
(i) 1° July of the year in cases where ACRs are written calendar wise and
(ii) oe October of the year where ACRs are written financial year wise.
On the same analogy, in Survey of India where ACRs are written from 1° July to 31° June, for the ACR year 1993-94, the crucial date is 1 January 1994. As the under signed became eligible for consider on 29.12.1993 the applicant should have been considered for promotion in ACR year 1 993- 904 as the vacancy was, already available."
10. What is "spoken" in the speaking order:
(i) Regarding the submissions at 9(a) above. There were a large number of vacancies that remained unfilled in the grade of DSS in Defence Stream as there was no intake of Army Officers in Survey of India, for quite some time. These vacancies were temporarily transferred to Civilian Stream and Officer Surveyors --
'who had completed 8 years. service. were considered. for promotion to the grade of Superintending Surveyors, as provided in the rules. Therefore, there was no violation of recruitment rules and no excess promotions of officer surveyors to SS were made _ above their quota. .
(ii) Regarding 9(b) : Dates of eligibility of all Deputy SS of his batch are different for consideration of their promotion to. the post of SS due to different dates of joining in the post of DSS and completing 4 years service on different dates. Shri Sudarshan Singh who is junior to the applicant became. eligible for consideration for promotion on 29.12.1993, due to joining to the post of DSS earlier, but he is also promoted. along with the applicant against the vacancy for the year 1994 and has not become senior to the applicant.
11. Our views on the stand of the Respondent:
| We are at a loss to understand now 'the vacancies which remained unfilled in the grade of Deputy Superintending OA No.170/00425 & 426/2016/CAT Bangalore Surveyors _in_ Defence. Stream which -- were 'temporarily transferred" to Civilian Stream, suddenly got ugraded to the next higher grade and transformed themselves into vacancies in the-
-- grade of Superintending Surveryor. No explanation is forthcoming in the order. The period during which the above mysterious phenomenon was operative is also not forth coming from the "speaking" order. So, let us leave it here and presume that there were vacancies in SS grade which were meant for Defence stream and they were temporarily filled up by officer surveyors who had fulfilled the eligibility criterion. The statements that vacancies were temporarily transferred to Civilian stream' and "no excess of promotions of officer surveyors to Superintending Surveyor were made above their quota" are mutually contradictory. If the vacancies were transferred only temporarily, they should have got adjusted on a later date and would have reverted back to the appropriate quota. Persons who were promoted against such temporarily transferred vacancies cannot claim seniority over those belonging.to the stream for which the vacancies are earmarked as per recruitment rules. This is the guiding principle in the decisions of Cuttack Bench in OA No.221/96 and OA No.438/1998. --
12. Let us now take up the issue of inter-se-seniority in the grade of SS. it is stated that the same is determined following government _ instructions as provided in DST's _ letter No.SM/01/06/96 dated 10/19.2.1997. Along with the reply. to the OA the respondents have produced a copy of the above letter as Annexure R-1. We are shocked to see that it speaks of nothing _ but a "proposal" to amend recruitment rules regarding seniority of officers in the senior Time Scale of SS in Survey of India. Let us reproduce the relevant portion here:
; "2. It is advised that:
_ a) The inter-se seniority in the grade of SS in the civil stream may be regulated in the ratio of 50:50% by promotes from DSS (JTS) grade and from the grade of OS respectively subject to the condition that;
b) Promotees of an earlier/senior panel would be placed above the officer promoted from any stream belonging to a subsequent panel/panel of later years.
Cc) Rule 9 of the Recruitment Rules may be deleted.
_ Surveyor General's Office is therefore, requested to:-
i) Intimate this | Department whether. the above clarification _. would require any and if so what changes in the existing ~ seniority list of Supat. Surveyors (senior Time Scale).
OA No.170/00425 & 426/2016/CAT Bangalore _ -10-
ii) Formulate a proposal for amendment of the recruitment rules as proposed to pre-paragraph for further processing at this end.
An immediate reply is requested"
Nothing is forthcoming regarding the "immediate reply" in response to the above advice sent or any gazette notification which is absolutely necessary to amend recruitment rules formulated under Rule 309 of the Constitution of India and duly notified in the Gazette. The above quoted "instructions" do not have the "strength" to delete Rule 9 of the Recruitment Rules. We fully agree with the submissions made by the applicant in para 5 of the rejoinder in this regard. At the Bar the learned counsel for the applicant. brought to our notice the ratio of decision of Hon'ble Supreme Court in Harla v. State of Rajasthan (AIR 1951 SC 467). It was held: A law cannot come into being by merely passing a resolution without promulgation or publication in the gazette or other means". It is no more re integra that executive instructions cannot substitute rules framed under Rule 309 of the Constitution of India. Executive instructions can only supplement the rules and cannot supplant the rules. Executive instructions issued are to be consistent with the rules (decision of the Ahmedabad Bench of this Tribunal in OA No.221/2001 in Mrs.Veena S.Rai V. Union. of India~and others decided on
13.11.2003). Such instructions can clarify the doubts, if any, in the rules and such clarification should not substantially alter the clear provision made in the rules.
13. The learned counsel for the applicant also submitted that even if DST's letter of February 1997 is taken as rule it cannot affect the applicant as its contents were not brought to the knowledge of the applicant. Bachittan Singh v. State of Punjab (AIR 1963 SC 395) was cited wherein the Hon'ble Supreme court had held that "the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order'. This observation was in the ~ context of Article 311 of the Constitution of India. Even without depending on this decision, as discussed in pre-para, the respondent department acting on the letter of February 1997 from DST to supersede the Rules framed under Article 309, was illegal and hence all decisions taken on the sole basis of the said letter are liable to be struck down. Resultantly, the seniority of the applicant has to be fixed as provided in Rule 9 of the Recruitment _ Rules published in the Gazette on 265.1989.
14. We have also gone through the decision of the Cuttack Bench of this Tribunal in OA No.221/96 and OA No.438/98. OA _ No.221/96 'was regarding fixation of seniority in the cadre of Officer Surveyors (Group. B) consequent upon revision. of recruitment rules in 1983 providing . for 25% promotion through limited: Departmental Competitive Examination (LDC for short).
OA No.170/00425 & 426/2016/CAT Bangalore -11- 75% of the vacancies were to be filled by promotion on seniority from the cadre of Surveyors through Departmental Promotion Committee (DPC). In this OA the applicants had prayed for recasting the seniority list of officer surveyors (OS for short) by . properly fixing the inter-sé seniority positions of the applicants who passed the LDC examination 1986 in respect of vacancies of 1984, vis a vis the DPC promotes who were promoted through DPC to the vacancies of the same year in accordance with 3:1 vacancy roster. Though the 1983 recruitment rules came into effect from 27.4.1983 there was delay in finalizing the scheme for _LDCE. The final order was issued only on 3.12.1985. Applicants pleaded that according to the provisions regarding recruitment ~ roster, for vacancies to be filled up in a particular year after every three appointment, by way of DPC promotes, one person promoted through LDCE, will have to be placed. The applicants' case was that they were in the feeder cadre prior to 27.4.1983 when 1983 recruitment rules came into force and they had all the eligibility qualification for appearing the LDC examination. Ultimately in August 1986 written test for LDC Examination was conducted. The Interview was held in January 1987 and 17 persons qualified in the written test and interview and were promoted as OS in 1.7.1987. The applicants were amongst those
17. persons. The applicants contention was that these 17 persons, should have been given promotion simultaneously with 175 persons who were premoted in the DPC quota during the year 1985 and 17 persons should have been given. their due position the gradation list according to the roster of 3:1. But because of the delay in holding the examination, the applicants were given promotion as late as in the year 1987. The applicants grievance was that these 17 examination promotes of 1987 were given placement according to 3:1 vacancy roster with the 27 DPC promotes during 1987 instead of giving such placement with 17k5 DPC promotees.
--16.. The department published a seniority list of Os in 1 985 and 1986. Deciding on 2 OAs filed in that Bench, the Allahabad Bench of the CAT quashed the DPC proceedings held in 1984 and the seniority list of OS as on 1.1.1986 and directed for conducting review. DPC. Accordingly all the DPS proceedings held between 1984 and 1992 were rendered invalid and a review DPC was held in 1993 and 185 persons were given promotion in the 75% DPC quota revising the list of entire DPC promotes during the period from 1984 to 1992. Applicants did not know their seniority positions in the seniority list because the seniority jist as on 1.1.1988 was circulated for the first time in 1990.
-. Applicants filed various representation for giving their inter-se. seniority position along with. 175 persons of 1 985 promotees but oh without any result .
16. Let. us 'quote below the facts found by the Hon'ble Cuttack \ Bench of this Tribunal.
OA No.170/00425 & 426/2016/CAT Bangalore -12- "9. Admittedly according to the recruitment rules of 1983, after coming into force the 1983 rules, the vacancies that were existing on 27.4.1983, 75% of the vacancies of Officer Surveyors, were to be filled up by the DPC appointees and 25% by LDCE appointees. Admittedly, the Departmental Authorities delayed in holding the limited departmental examination and the applicants got promotion only in June 1987. They say that as their quota of vacancies relate to 27.4.1983, they should be given their position according to recruitment roster along with. 175 DPC recruits who were taken in 1985. The 'respondents, on the other hand, claimed that as these applicants joined as Officer Surveyors only in June 1987 and the seniority should count from the date of their appointment in the concerned cadre, they cannot get seniority along with 175 DPC recruits who were taken in 1985. . .
10. | We have given our anxious consideration to the rival submissions of the parties. From the counter filed by the respondents, we note that even though applicants were appointed in June 1987, the Departmental Authorities treated them as appointees against 1986 examination and their seniority were assigned along with promotees of 1986 vacancies. This is mentioned in the counter and this' portion has already been extracted by us. From this, it appears that respondents have put the petitioners, who have actually been recruited in 1987 above the 1987 DPC promotees unblock. They have themselves mentioned that seniority of the applicants have been assigned with the promotees of 1986 vacancies. Petitioners have, however, stated that these 17 LDCE appointees who joined in June . 1987 have been placed enblock above, 1987 DPC _ recruits. The Recruitment Roster, specifically provides that after 3 (three) DPC promotees, one LDC appointee will have to be placed. This has not been done by the Departmental Authorities. The other aspect is whether they should be placed along with 1985 DPC recruits or 1986 DPC. recruits which has already been done. Before considering this, it has to be noted that in 1985, 175 DPC promotees were appointed. Strictly speaking along with 175 DPC promotees, had the examination been held in time and 58 persons been available from the LDCE quota then 58 candidates from LDCE quota, would have been taken. But even when the examination was held in 1986 and viva voce in 1987, only 17 persons qualified in the LDCE examination. As the respondents have delayed in holding the examination and as the applicants qualified in _ the first examination which was held and as according to their averments, which has not been denied in the counter, on 27.4.1983, they were qualified to take the examination --
~~" OA No.170/00425 & 426/2016/CAT Bangalore -13- had it been held along with promotion of DPC candidates, the petitioners cannot be allowed to suffer. In view of this the correct procedure would be, to give these «... (not eligible) position one after every three promotees of 19885.
- The arguments of the respondents that they cannot be given seniority from a date prior to their initial appointment in the cadre is without any merit for the following reasons."
Thereafter two reasons for rejecting. the respondents' submissions were discussed by the Tribunal. The Tribunal arrived at the decision quoted below: -- .
"13. From the above, it is clear that even in cases where direct recruits or promotees are not available, inspite of holding the examination of selection the later recruits, in direct or promotion quota took their position in the slots meant for their respective quotas. Thus, for occupying the Slots, the date of joining in their respective grade was not considered at that time. Because of this, in this circular, it - has been stated that if adequate number of direct recruits do not become available in a particular year, rotation of quotas for purpose of determining seniority would take place only to the extent of the available direct recruits and . the promotees. In other words to the extent direct recruits not available, the promotees will be bunched together at the 'bottom of the seniority list, below the last position upto which it is possible to determine seniority on the basis of _ rotation of quota with 'reference to the actual number of direct recruits vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year. This envisages a situation, where even after holding the examination direct recruits were not available in sufficient number.
14. In this case, the LDCE appointees were not available in 1985 against the DPC promotees because the examination was not held even though persons were qualified for taking the said examination. Therefore, in this case, the applicants must be shown in between 1985 DPC _ appointees according to the roster point.
_ 18. It is, however, ordered that after the respondents bring out the seniority list, in accordance with the directions given above, they should consider the cases of these applicants for promotion to the post of Supdt. Surveyor from the date their juniors in the revised seniority list got promotion to the post of Supa Surveyor." ee OA No.170/00425 & 426/2016/CAT Bangalore -14-
17. O.A. No. 438/1998 was a rival claim by the DPC promotees in the cadre of Officer Surveyors. The applicants in O.A. No. 221/96 were made private respondents in this OA. The "sum and substance of the prayer in this application is that decision in O.A. No. 221/96 has not been correctly taken according to law and as such should not be acted upon." The OA was considered by a Full Bench of the Tribunal and it upheld the decision of the Division Bench of the Tribunal in O.A. No. 221/96.
18. Thus, the decision of the Cuttack Bench has laid down that when "rota quota rule" is prescribed, between two sections say 'A' and 'B', the vacancies falling within the quota of one section (A) cannot be filled by persons belonging to the other Section (B) and later be assigned seniority over persons belonging to 'A' Section, if the promotion of section 'A' was delayed for no fault of theirs, but because of procedural delays attributable to the respondent department. Principal Bench of this Tribunal in O.A. No. 1405/02 (Shri B. Bahadur Joshi and others Vs. Election Commissioner of India and others) had given the decision on 22.9.2003 that "The promotees who occupied the vacancies meant for direct recruits cannot be accorded seniority against those posts falling beyond their quota." The applicant has cited the observation of the Hon'ble Supreme Court in N.K. Chauhan
- v. State of Gujarat (AIR 1977 SC 251) and S.B. Patwardhan v state of Maharashtra (AIR 1977 SC 2051) and MSI Patil v. State of Maharashtra [SCSLJ 304 1997 (1)]. All these case laws had discussed the issue of seniority between direct Recruits and Promotees in a cadre where the promotion is from two streams viz. Direct recruitment and promotion. In the present case, the two streams are departmental ones only, but of different groups viz., Officer Surveyors (Group B) and Deputy Superintending Surveyors (Group A). : .
19(a)The cases before Cuttack Bench were similar to the present OA and hence the decision in that case is applicable mutatis mutandis to the OA before us. The relevant features of both the cases and the way the relief has accrued/has to accrue are as:-
OFFICER SURVEYORS (GROUP-B) promotions in the ratio 3:1 (75% and 25%) (Recruitment Rules 1983) Promotion by DPC (75%) Promotion by LDCE (25%) The scheme for LDCE examination was worked out in 1985. Applicants were eligible to take examination in 1985.
Due to departmental formalities examination. could be held in 1986 only and final selection of the first batch made in 1987.
OA No.170/00425 & 426/2016/CAT Bangalore . ~15- Cuttack Bench of CAT ordered that the first batch of | LDCE appointed OS should be given seniority with the 1985 DPC appointees according to the roster point -
SUPERINTENDING SURVEYORS (Senior Time Scale Group A).
(Recruitment Rules of 1989) Promotion in the ratio 1:1 (50%:50%) from O.S. (Group B) with 8 DSS (Group A) JTC years service _ With 4 years service . . The applicant is eligible for promotion in 1993/94 (claims that he is eligible for promotion in 1993 on. the strength. of Department of Personnel and Training OM dated 18.3.1988.
This claim has to be looked into by the respondent and decided as per Rules). DPC is held only in 1998 due to departmental delay.
. Respondent No. 2 should have decided the representation at Annexure A-4 giving the benefit of seniority for the |.
applicant with OS promotees of (1993/94 (as the case may be) _ jand. seniority assigned as per Roster point (OS, DSS, OS,
-- IDSS...ete.) as per ratio of Cuttack Bench decision.
19(b)The applicants in O.A. No. 221/96 had only fulfilled the necessary educational and service qualifications in the year 1985. for appearing for LDC examination. Their final selection for the -- _ cadre of OS was dependent upon their performance in the-- written. examination held in 1986 and interview. conducted in 1987. As per the decision of Cuttack Bench of this Tribunal in the above OA, as they were eligible to appear for the examination in 1985 and the delay in holding the examination was attributable to the respondent department, their inter-se seniority was fixed with the DPC promotes of 1985 in accordance with the. quota roster.
ee In the case of the applicant in the OA before us, there was no
- hurdle. like passing departmental examination, satisfactory OA No.170/00425 & 426/2016/CAT Bangalore -16- performance in the interview etc. to be crossed. He was very. much eligible for promotion in 1994 (or 1993?) and as per the averments made by the Respondents, he was promoted against the vacancy of 1994, in the DPC held in 1998. For granting the eligible promotion to the applicant the only requirement was convening the DPC and the blame for delay of four years squarely falls on the Respondents. These discussions will show that the applicant's case is similar if not identical to the one which was before the Cuttack Bench; in fact the applicant's case is stronger as the requirement for his promotion was only satisfactory record of past service, to be assessed by DPC and not passing any written examination or facing an Interview Board.
19 (c) A reading of the following quote from the impugned order reveals that the only reason for not giving the entitled seniority to the applicant was that he had not obtained any favourable orders © from a Court in respect of his claim for seniority. -
"Some of the Surveyors who were promoted to the post of Officer Surveyor in 1987 through LDCE were not eligible for' promotion to the post of SS against the vacancies for 1992 and 1993 due to not completing the 8 years service in the post of OS in the DPC held on 9.10.1995 as required in the Service Rules of 1989. But in implementation of orders dated 27.3.2000 of Hon'ble CAT, Cuttack Bench in O.A. No. 221/1996 and O.A. No. 438/1998 they had been promoted to the post of SS in the Review DPC held on 26.6.2001 against the vacancies for the year 1992 and 1993."
Thus even Oss who did not have the required length of service. of 8 years were given promotion against vacancies of 1992 and 1993 by giving them seniority of 1985 as per their quota (though promoted as OS in 1987) as per the decision of the Tribunal. In Inder Pal v. Union of India [(1985) 3 SCR] the Hon'ble Supreme Court had observed:-
'Those who do not come to court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated they. are entitled for similar treatment if not by any one else at the hands of the court." (underlining gone by us to stress emphasis) Hence, we. are bound to give similar reliefs to the applicant as in the case of those in O.A. No. 221/1996.
19(d) At this stage, we are.amused to read the portion of the 'speaking order' reproduced: below:
"AS they were senior to. the applicant in the grade of _ Superintending Surveyors, they were promoted to. the OA No.170/00425 & 426/2016/CAT Bangalore -17- grade of Deputy Directors. None of the juniors to the applicant in the post of Superintending Surveyor have been promoted to the grade of Deputy Director, hence no. damage is involved to the applicant " . .
The applicant is questioning the very correctness of the seniority list and claiming that his seniority should have been much above What is assigned to him. The respondent Says "as per the seniority list which | hold to be correct none of your juniors has been promoted to the.next higher grade" (!!). How can the applicant show any of his junior' in the seniority list, which is _ affirmed as.the correct and only correct one by the Respondent.
as promoted to the higher grade? (though we hold the seniority list as one prepared arbitrarily and illegally without following the notified rules). . a . .
20. As discussed at length, we are fully convinced that the reliefs sought are to be granted. Accordingly - . .
(a) We quash the impugned orders at Annexure A-5.
_(b) We direct the respondent No. 2 to prepare and publish yearwise seniority list of SS from the year 1992 onwards, strictly 'in terms of Rule 9 of the Survey of India Group A Rules, 1 989, assigning the applicant a proper ranking in the list [Respondents are prohibited to use the advice/suggestions contained in DST letter dated 10/19.2.1997 while preparing the seniority list] after calculating year wise vacancies as per the provisions in Rule 7
(iii) of the Survey of India (Group A) Service Rules, 1989. This should be done within a period of three months from the date of receipt of a copy of this order. : .
(c) On the lines of the decision of the Cuttack Bench of this Tribunal, it is ordered that after the respondents bring out the seniority list, in accordance with the directions given above, they should consider the case of the applicant for promotion to the post of Deputy Director from the date his juniors, if any, in the _revised seniority list got promoted to the post of Deputy Director. This exercise should be completed within three months from the :
date of complying with the order at (b) above. --
__(d) We appreciate the tenacity of the applicant, in fighting to __ Secure the justified rights and privileges in his career by making . repeated attempts like Robert Bruce) unfettered by failures and -- set backs in the Tribunal and Courts to win ultimately. It was the
- applicant himself who cogently presented his case before us _ during the hearing; still as he had taken legal help to file this case. __we order 'a sum of Rs.5,000 to be paid to the applicant, by the respondent which we assess as the costofthisOA. ="
OA No.170/00425 & 426/2016/CAT Bangalore ~18-
2. The only objection put forth by the learned counsel for the applicant is' | that this should have relevance to. the period prior to 1984, when the original DPC which had transgressed the principles which have been upheld by the Tribunal following the full Bench decision could have Been met and not for the subsequent years. It is not correct. For the subsequent years also as the respondents have rightly done pthe principles put forth is the principles ~enunciated by the full Bench which has ail India repercussion. Therefore, it does not call for any other change in the application.
3. Learned counsel for the applicant submits that in view of what is said in paragraph 7 of the said order that the seniority once cast need not be re-opened, may not be very relevant when the principles upon DRC had convened the Meeting and conducted its proceedings was assailed i in the court of Law in successive proceeding that principle was found to be incorrect and not applicable and set aside, and the correct principle enunciated and which has been accepted, there is no cause to say that a different yardstick need to be adopted in the subsequent orders. In the subsequent orders also the same principle will be followed.
4. 'That is not to say that applicant need to be reverted but then in the light | of the principles we already laid down in OA No.737/2004, if the applicants are so eligible they can be placed in the various points along the seniority Not i possible and accommodated. But then this will not preclude them from being reverted if such an eligibility do not exists for them.
5. We will therefore, remit the matter back to the respondents to consider this aspect also and pass an appropriate order within six months next, The
- purpose, OA is dismissed. No order as to costs. \) OA No.170/00425 & 426/2016/CAT Bangalore
-19..
contentions in the OA against the principles laid down will not lie and for this a eo MEMBER (A) __ 7 "MEMBER (J) _ /rsh/ OA No.170/00425 & 426/2016/CAT Bangalore -20- Annexures referred to by the Applicant in OA No.170/00425 & 426/2016 Annexure A1 Annexure A2 -
- Annexure A3 Annexure A4 Annexure A5 Annexure A6 Annexure A7 Annexure A& Annexure AQ Annexure A10 Annexure A11 Annexure A12 Copy of the appointment order dated 26.6.2005 Representation dated 30.10.2015 Copy of the Review DPC No.C-2057/853-SS dated 5.4.2016 Copy of the Self Contained note to DPC Copy of the DPC proceedings No.F.1/62(6)/2004-AP-3 dated 16.4.2005 _ Copy of the letter No.SM/01/022/2004 dated 27.5.2005 Copy of the Recruitment Rules Copy of the order dated 4.1.2006 in OA No.737/2004 Copy of the letter No.SM/04/04/2005 dated 20.10.2011 Copy of the letter Dy. No.530/2006 dated 24.2.2006. Copy of the letter dated 23.7.2015 from Dept. of Legal Affairs | Copy of the letter No.SM/01/03/2013 dated 10.8.2015.
Memo for Production of Documents by the Applicant Annexure A13 Copy of the letter No.E1/068/701 (Coll. 69) dated 21.4.2016 Annexure referred i in Rejoinder filed by the applicant Annexure A14 Copy of the letter No. SM/35/02/2016 dated 15.6.2016 |