Central Administrative Tribunal - Delhi
Raj Kumar Guleria vs M/O External Affairs on 21 April, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 537/2021
Order Reserved on:21.02.2023
Order Pronounced on:21.04.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
1. Shri Raj Kumar Guleria,
S/o Shri Kehar Singh,
Aged 54 years, Group-C,
R/o H.No.994, Sec-4,
RK Puram, New Delhi-110 022
2. Shri Giriraj Sharma,
S/o Sh. Rampal Sharma,
Aged 50 years, Group-C,
R/o H.No.38, Sarvodaya Nagar,
Vijay Nagar, Ghaziabad
3. Shri Krishan Gopal,
S/o Shri Banta Ram,
Aged 55 years, Group-C,
H/o 151, Pratap Vihar,
Part One, Gali No.4, Delhi-110 086
4. Shri Birender Singh, S/o Shri Prem Singh,
Aged 54 years, Group-C,
R/o RZ 198/314, Sagar Pur,
New Delhi-110 046
5. Shri Jeewan Singh, S/o Shri Hukam Singh,
Aged 52 years, Group-C,
R/o H.No.540, Sec-1,
RK Puram, New Delhi-110 022
6. Shri Tara Datt, S/o Shri Hira Ballabh Joshi,
Aged 47 years, Group-C,
R/o H.No.931, Sec-2,
R.K. Puram, New Delhi-110 022
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7. Shri Shyam, S/o Shri Raghubir,
Aged 45 years, Group-C,
R/o F-362, G-11, Jaipur-II,
Badar Pur, New Delhi-110 044
8. Shri Om Prakash, S/o Shri Ram Chandar,
Aged 45 years, Group-C,
R/o VPO-Kharawar, Distt. Rohtak,
Haryana -Applicants
(By Advocates: Mr. RV Sinha and Mr. Amit Sinha)
VERSUS
1. Ministry of External Affairs,
South Block, New Delhi
(through the Secretary)
2. The Joint Secretary (CPV & PSP) &
Chief Passport Officer,
Ministry of External Affairs,
Patiala House, Tilak Marg,
New Delhi-110001
3. The Regional Passport Officer,
Regional Passport Office,
HUDCO, Trikoot-III, Bhikaji Cama Place,
RK Puram, New Delhi-110066
4. Shri Dipankar Mondal,
5. Shri Avijit Datta
6. Shri Santosh Kumar,
7. Shri Ashwini Kumar Giri,
8. Smt. Prahlad Meghwal,
9. Miss Sonam Tomar,
10. Shri Atish Kumar Depankar,
11. Shri Shashi Ranjan Kumar
(Respondent Nos.4 to 11 working as Senior Passport
Assistant with the Respondents to be served through
Respondent No.2)
- Respondents
(By Advocate: Mr. Hanu Bhaskar and Mr. Vijendra
Singh)
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ORDER
Hon'ble Mr. Tarun Shridhar, Member (A):
Aggrieved by the seniority list dated 11.05.2020 and 23.09.2020, the applicants have filed the present OA seeking the following reliefs :
"(i) call for the relevant records of the respondents in the matter;
(ii) hold and declare the O.M. No. CDR-
II/582/03/2016 dated 11.05.2020 [Annexure-A-1 (Impugned)] and O.M. No.CDR-
II/582/03/2016 dated 23.09.2020
Annexure-A-2 (Impugned)| as illegal,
arbitrary and nullity in the eyes of law.
(iii) hold and declare the action of the respondent No. 1 to 3 in giving retrospective seniority to the participants annd successful candidates of LDCE 2016 conducted by the SSC from the date of requisition by the official Respondents for the exam or even declaration of such result and interpolation of their name as such in the impugned seniority lists is arbitrary, illegal and not sustainable in law and consequently quash such fixation of seniority of the resporndent No.4 to 11 and similarly placed persons in the impugned seniority list.
(iv) hold and declare the principle /policy adopted by the official respondent for giving the retrospective promotion/seniority and also interpolation of promotee through LDCE exam in the ratio of 3:1 as arbitrary, illegal and void ab initio with consequential relief.
(v) hold and declare that the fixation of seniority of the applicants in the seniority list as on 01.04.2019 vide (Annexure A-8A) as Senior Pasport Assistant has been proper and legal and the same continues to hold 4 good in law for the purposes of future promotion/examination.
(vi) As consequence of prayer (ii) - (v) being allowed, quash the impugned seniority lists to the extent noted above and direct the Respondent Nos.1 to 3 to re-draw the fresh seniority lists by following the date of appointment principle laid down by the Apex Court in Jagjit Singh Patnaik & Ors. Vs. State of Orissa & Ors., reported as 1998 (4) SCC 456 and approved by the Hon'ble Apex Court in K. Meghachandran Singh (Supra);
(vii) award cost of the proceedings in favour of the applicants and against the official respondents.
(viii) may also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice."
2. At the outset, Mr. R.V. Sinha, learned counsel for the applicant places before us two orders passed by the co-ordinate bench of this Tribunal i.e. OA No 1545/2020 decided on 12.07.2022 and OA No 59/2022 decided on 24.08.2022. He submits that the principle and the issues at stake in the present OA have been conclusively decided in the aforequoted OAs and accordingly, there could be no reason to take a different view. He clarifies that in the aforementioned OAs also, a challenge was placed to the seniority list on the ground that they have been drawn in contravention to the principles laid down by the Hon'ble Apex Court 5 in K. Meghachandra Singh vs. Ningam Siro in Civil Appeal No. 8833-8835/2019. He submits that if one were to go through the judgments passed in these OAs, it would be abundantly clear the issues are identical. The issue and the relief sought in the present OA can be adjudicated upon on the analogy of these two OAs.
3. However, Mr. Hanu Bhaskar, learned counsel for the respondents strongly contests this and submits that there is hardly any similarity between the issues involved.
4. Mr. Sinha, learned counsel for the applicant further argues that in terms of the recruitment rules, only a percentage of posts of Sr. Passport Assistant are to be filled from two streams i.e. by way of regular promotion through DPC and accelerated promotion through Limited Departmental Competitive Examination (LDCE). Interpolation of seniority has not been provided for in the recruitment rules. Accordingly, the principle of assigning seniority to both set of employees who get promoted is to be assigned on the same principles.
5. Mr. Hanu Bhaskar, learned counsel for the respondents on the other hand submits that the 6 seniority is to be assigned strictly in accordance with the provisions set forth in the DoP&T memorandum dated 04.03.2014 and in accordance with the recruitment rules. He submits that the fact that this post has been categorized as a selection post would make it abundantly clear that while assigning seniority, the principle of selection has also been taken into due consideration. He submits that the DoP&T memorandum he has referred to relies upon the judgment rendered by the Hon'ble Supreme Court in N. R. Parmar and Ors. Vs. Union of India and Ors. in Civil Appeal No. 7514-7515/2005.
6. While overturning the said judgment in the K. Meghachandra Singh vs. Ningam Siro Civil Appeal No. 8833-8835/2019, the Hon'ble Supreme Court had protected the actions already taken pursuant to the N.R. Parmar (supra) and in the instant case, the seniority list impugned are prior to the K. Meghachandra (supra) judgment.
7. Learned counsel for the applicants further draws attention to the relevant date of the O.M. which is impugned in the present O.A. and submits that this O.M. is post K. Meghachandra Singh Vs. Ningam 7 Siro case. Hence, the principles and law laid down in the K. Meghachandra case should be applicable. On the other hand, learned counsel for the respondents submits that the O.M. may be dated 11.05.2020, however, the impugned seniority list is as had existed on 01.01.2019. Hence, the said list stands protected in terms of the judgment of the Hon'ble Supreme Court in N.R. Parmar and Ors. Vs. Union of India and Ors. Learned counsel for the applicant further argues that the second impugned seniority list is dated 23.09.2020 and gives a list in order of seniority as it existed on 01.01.2020. This fully establishes that the matter is to be decided in terms of the law laid down in K. Meghachandra.
8. Learned counsel for the respondents clarifies that there is crucial difference in the two impugned seniority lists as the second seniority list that is circulated vide OM dated 23.09.2020 takes into consideration the subsequent judgment of the Hon'ble Supreme Court in K. Meghachandra case. He elaborates that the seniority of the year 2019 has necessarily to take into consideration the vacancy year while assigning an appropriate position in terms of the law laid down in the N.R. Parmar Case. Learned 8 counsel points out that the judgment of the K. Meghachandra came on 19.11.2019 which means that the principle for assigning of seniority would change after this date, although with protection to the action taken on the principles laid down in the N.R. Parmar case. As now seniority should be assigned with effect from the date of joining, therefore, such necessary correction has been made in the 2020 seniority list.
9. Learned counsel for the respondents concludes his arguments by drawing attention to the table published at page 9 of the O.A. and submits that there is a column in the said table which mentions the seniority list as on 01.04.2019. He says that the said column has been drawn by the applicants themselves and does not confirm any recognition as the seniority list of the department since no such seniority as on 01.04.2019 has been assigned by the department. He further reiterates that the next two columns '01.01.2019 and 01.01.2020' in terms of seniority list are on the basis of the seniority list issued by the department and as he has clarified that the first one is on the basis of the N.R. Parmar principles and the second one on K. Meghachandra. He goes on to clarify 9 that the position in the seniority list, in terms of all the applicants, has risen on 01.01.2020 seniority list.
10. Learned counsel for the applicants strongly contests the arguments put forth by the learned counsel for the respondents. He submits that the table given in paragraph (xv) of page 9 of the O.A. is to be read along with the entire paragraph, in which it has been categorically mentioned that the seniority lists circulated earlier which are placed at Annexure A-6, Annexure A-7 and Annexure A-8A respectively, were changed subsequently to the detriment of the applicants and that is what their primary grievance is as is being agitated in the O.A. He further argues that once the Hon'ble Supreme Court had laid down the law in K. Meghachandra case, seniority is to be assigned from the date of joining and that is the situation as had existed earlier. As he has just argued there was no reason before the respondents, therefore, not to reassign the seniority in accordance with this judgment.
11. We have given detailed hearing to the learned counsel for the parties on more than one occasion. We have also meticulously gone through the voluminous 10 documents on record. At the outset, we have no doubt in our mind that the issue involved in the present OA bears great similarity with the issue considered and decided by a coordinate bench of this Tribunal in OA Nos. 1545/2020 and 59/2020, which have been referred to by the learned counsel for the applicants.
12. The grievance of the applicants with respect to the impugned seniority list is that the officials, who got promoted as Sr. Passport Assistants through the route of LDCE, have been assigned retrospective seniority by way of interpolation of their names in the seniority list with reference to the date of the examination. Learned counsel for the applicants argues that this is in gross contravention to the principles laid down by the Hon'ble Supreme Court in K.Meghachandra Singh's case (supra). While deciding the said matter, the Hon'ble Supreme Court had categorically held that a person cannot be assigned seniority with effect from the date when he was not in service or he was not borne in the cadre. In the instant matter, it is not disputed that in the case of those officials who got promoted to the post of Sr. Passport Assistants through LDCE, the date of seniority has not been the date on which they assumed the charge of this post, 11 but the date prior to that, i.e. the date when the selection examination was held. No doubt, learned counsel for the respondents has justified this action by relying upon the N.R. Parmar's judgment (supra) of the Hon'ble Supreme Court which had held that the vacancy year would be the reference point for assignment of the seniority and that the actions taken pursuant to the N.R. Parmar's judgment stand protected even after the judgment in K. Meghachandra Singh, we are of the considered opinion that determination of seniority with respect to the vacancy year does not by itself mean assigning the seniority on the date on which a person was not even borne on the cadre and when even his entitlement to hold that post had not been established. While deciding the OA No. 1545/2020, it has been clearly recorded that the judgment in the N.R. Parmar does not allow any liberty or scope to anyone to interpret it in a manner as to assign seniority from such a back date when the person was not even in service. In the instant matter, it is not in dispute that certain persons have been assigned seniority with effect from the date on which they were not borne in the cadre of Sr. Passport Assistant. Moreover, in K. Meghachandra Singh's 12 case, it has been emphatically stated that a person is not disentitled to claim seniority from the date he was not borne in service. The subsequent DoPT OM elaborately lays down the provisions for determining the seniority list in terms of the principles laid down in K. Meghachandra's case.
13. In a large number of judgments, including ones referred to by the learned counsel for the applicants, this Tribunal has consistently held the view that seniority cannot be assigned from the date prior to the one on which either the official assumed the charge of the post or a date which was specifically mentioned as the date of promotion of that person. Accordingly, we cannot sustain the action of the respondents in assigning seniority in the impugned seniority list from the date when the officials were not even appointed or posted to the said post.
14. In view of what has been detailed and discussed above, the present OA is allowed and the impugned OM dated 11.05.2020 and OM dated 23.09.2020 are quashed and set aside. As a consequence, the respondents are directed to draw the seniority list afresh strictly in accordance with the principles laid 13 down by the Hon'ble Supreme Court in K.Meghachandra Singh's case (supra) which has further been elaborated in detailed instructions issued by the DoPT. These directions shall be complied with within a period of 12 weeks from the date of receipt of a certified copy of this order. There shall be no order as to costs.
(Pratima K. Gupta) (Tarun Shridhar) Member (J) Member (A) /lg/